32 Miss. 133 | Miss. | 1856
delivered the opinion of the court.
This was an action of ejectment, in which joint and several demises from John M. Pintard and Allen G. Bowen to the lessee of the plaintiff were laid.
The case was first tried at April term, 1851, and a verdict was rendered for the plaintiff. On motion of the defendants a new trial was granted; to which action of the court the plaintiff excepted and took a bill of exceptions setting forth the evidence. On the second trial, a verdict was rendered for the defendants, and a motion for a new trial was made by the plaintiff and overruled, but no exception taken. And thereupon the plaintiff, Pintard, sued out this writ of error.
The errors assigned are for the most part the action of the court in granting the new trial after the first verdict, and the grounds involved therein.
But a preliminary question is raised in behalf of the defendants in error, which is fatal to the writ of error.
It appears that, on the first trial, the plaintiff’s right to recover was placed solely on the ground of the title of Bowen to the premises in controversy, and it was attempted to be shown that the defendants were tenants of Bowen, and could not dispute his title, and therefore that a recovery should have been had on the demise from him. It further appeared that the estate of Bowen was in right of his wife as heir-at-law of her father, and of course it could not have been, and was not, shown to have been a greater estate than one for his life.' It further appears by the record that after the first verdict was set aside and pending the suit, Bowen died, and t]iat his heirs were not made parties to the action.
The suit must, therefore, be considered as to the demise of Bowen, when it was finally tried, as discontinued or abated, and
The cause must, therefore, be treated as having been disposed of upon the final judgment solely on the title of Pintard; and accordingly the writ of error is prosecuted by him.
The record contains no bill of exceptions taken upon that trial, showing any title in him; and he cannot therefore complain that any injury was done to him by error on that trial. Davis v. Brown, 27 Miss. 265; Gwin v. Williams, Ib. 324.
There being in law no final judgment upon the demise of Bowen, Pintard has no right to complain of errors, if there be any, committed to the prejudice of that title, in the action of the court in granting the new, trial., ■
Another objection of equal force is taken. It appears that at the last trial, the defendants filed a plea alleging that the term of the plaintiff and all right and title to the premises had ceased and determined. Upon this, issue was joined, and the verdict was for the defendants. In the absence of any evidence adduced on the trial, we are bound to presume that the verdict upon this issue was correct. If so, it would be vain to reverse the judgment and grant a new trial, which could not change the result.
Let the judgment be affirmed.
