27 Miss. 324 | Miss. | 1854
delivered the opinion of the court.
This case is brought here upon writ of error to a judgment in ejectment against the plaintiff in error, ifffavor of the defendant in error.
The first objection made to the judgment is, that it does not appear that the defendant below was the tenant in possession. We think it a sufficient answer to this objection that he appeared and pleaded to the action; and inasmuch as proof of his possession was essential to the maintenance of the action, it will be presumed, in the absence of evidence to the contrary, to have been made.
But it is insisted that there was no appearance or plea by the defendant, and no issue to be tried.
It does not appear by the record that the notice attached to the declaration, though addressed by the casual ejector to the defendant as tenant in possession, was ever served upon him. But the record shows the following entry: “ Afterwards at a circuit court held, &c., Alexander Gwin, on his motion, is admitted defendant herein in the room of said Roe, and therefore, by his attorney comes and defends the force and injury when, &c.; pleads the general issue, confesses the lease, entry, and ouster in the declaration supposed, and agrees to insist on the title only at the trial.”
As to the appearance, it may be shown either by an entry made on the record, under the sanction of the court, or by the plea of the defendant. If he makes his personal appearance, it is an essential step in the suit, and should be entered by the court upon its record. Such has been the practice from time immemorial to the present day. 1 Tidd’s Pr. 213,214, (4th ed.); Steph. PI. 32, (1st ed.). It is necessary in many cases, as in this, to show the jurisdiction of the court. It is manifest that the appearance of the defendant is not to be shown only by his plea; for he may appear and decline to plead; in which case the judgment is not one of default, but on appearance and nil
Nor do we think that this record can be regarded as not showing a plea and issue, substantially good fox all the purposes of the suit. It is true, no formal plea of not guilty is drawn out and signed by the defendant or his counsel. But the record shows that he did appear and plead the only plea allowed by our laws to be pleaded in such a suit. We are aware of no statute in this State requiring pleas to be drawn up in writing. It is generally required by the circuit courts as a matter of convenience. But there is nothing to prevent these courts, in the exercise of their discretion, to allow the parties to make up their issues on the record. The essential thing is, that the issue must appear by the record; but as to the manner in which it must appear, it must necessarily be regulated by the circuit court, and by the course of the parties or their counsel; and accordingly, the cases are numerous in which pleas of this simple character, replications, &c., are entered in short by consent of parties. If such a practice be proper, we can see no reason why the parties should not have the issue made entered on the record, under the sanction of the court. The only objection against such a course would seem to be that it might not be full, distinct, and certain. But this cannot apply in the present case; for it is impossible that the plea of the general issue can be misunderstood by legal minds.
In this case, it appears by the record that the defendant appeared and conducted the defence throughout, by his attorney, offering instructions and making a motion for a new trial. These steps go but to confirm the legal presumption arising from the record, that the defendant appeared and made up the issue as it is shown by the record, and that that was intended and treated by the parties and the court, as presenting the issue instead of having it drawn up in due form. We think, therefore, that the record sufficiently shows that an issue was made and tried, and, with all necessary certainty, what that issue was.
This case is brought up on a motion for a new trial overruled, but there is no bill of exceptions which the court can notice, showing upon what state of evidence the case was tried. But it is insisted that, as the instructions are made part of the record by the provisions of our statute, it is the duty of this court to examine them irrespective of the evidence, and if they do not declare the rules of law properly, the judgment should be reversed.
We do not think this position well founded. The legal merits of every lawsuit depend, first, upon the facts of the case; and secondly, upon the rules of law arising from those facts; and without the facts showing the merits of the case, either proved or admitted, no controversy can be properly considered by a court of justice. When a suit has been tried upon issues of fact, as in this case, this court cannot know the facts, which are the very foundation of the case, except through the medium of a bill of exceptions, unless by consent and agreement of the parties. The substantial question presented in this court upon a writ of error to the judgment of an inferior court is, whether that judgment is just and correct upon the facts shown. The rulings of the court may be erroneous, and yet the judgment be clearly correct, and judgments under such circumstances have been frequently affirmed by this court. But yet it is impossible for the court to determine upon this point, because it is not in possession of the very essence Of the case, and it finds itself, called upon to- say that the judgment of the court below is wrong, without having the case before it upon which that court pronounced its judgment. Such a proceeding, we think, would be in the highest degree anomalous and mischievous, and we think it was not the intention of the statute referred to, to dispense with the incorporation of the evidence on which a case was tried, into the record; or that the judgment below should be examined in this court without the evidence properly presented.
But even if the above view of the subject were not correct,
In either of these views of the subject, the judgment should be affirmed, which was accordingly done.
