25 Miss. 194 | Miss. | 1852
delivered the opinion of the court.
The defendants in the court below plead in abatement of the ■writ, which was executed on the 25th day of February, 1852, and returnable on the 1st day of March following, that it was
After the decision on the demurrer, the defendants asked an extension of time to a certain day in the term, in which to plead to the merits of the action. This application was refused by the court, on the ground that it was then ready to adjourn, having disposed of all other business.
It is contended, that under the 12th section of the act of 1850, regulating the pleadings and practice in the circuit courts, the defendants were entitled to the second term of the court to prepare their pleadings, and that the court had no authority to render a judgment at the return term of the writ.
This statute must be construed with reference to the whole law, as well as to .the previous laws on the same subject. It says, that any pleading may be once amended by the party of course, without costs and without prejudice to the proceedings already had; provided the same be made at or before the second term of the court after filing the complaint.
It must be conceded, that under this section when a party has a right to amend his pleadings, he is allowed till the second term of the court to make the amendment. We must, therefore, determine what pleadings may be amended; and here we may remark, that the statute contains no new principle. It only permits the party to do without leave of the court what was never refused, under the previous law, on a proper showing. The statute of 1822, authorizing the courts of law to allow amendments of the pleadings before verdict; the statute of 1840, requiring the issue to be made up at the return term of the writ, and requiring the court to allow amendments in certain cases; and the statute of 1850 on the same subject, all look to one great object, a fair and impartial trial upon the merits of the controversy between the parties. By the act of
But we are referred to another clause of the same section, which, counsel insists, is decisive of this question. Its language is, “ And the pleadings shall in all cases be made up and prepared for trial at the second term of the court after the filing of the complaint,” &c. We can only repeat what we have already said, that this language embraces only pleadings to the merits of the controversy; and that where the party desires to amend a meritorious pleading, he must do so at or before the second term of the court.
When the court sustained the demurrer to the plea in abatement, the action was then undefended. The defendants had a right to plead, or answer to the merits. This was granted to them by the judgment of the court on the demurrer. By the act of 1840, the issue' on the merits must be made up at the return term of the writ. The only change made in this law by the act of 1850 is, that the party is not bound by the issue made at the appearance term, but may, without costs or leave of the court, amend his pleadings at the second term. But the very meaning of the term “ amend,” implies a previous pleading to be amended. The answer of the defendants to the merits could not be construed an amendment of the previous pleading, because it is but seldom that amendment to a plea in abatement is ever allowed, and when allowed it is for the purpose of making it a good plea in abatement, and not for the purpose of converting it into a plea in bar. The answer, therefore, which the defendants desired to file by a certain day was an original pleading, and the application to the court to enlarge the time for this purpose, was addressed to its sound discretion. It was in the power of the court to grant or refuse it, especially as it was not accompanied by any statement or showing as to the facts to be interposed as a defence to the suit. The court should never be rigid as to the showing made on such applica
Judgment affirmed.
