44 Miss. 306 | Miss. | 1870
This action-of assumpsit was brought to the March term. 1868, of the Tippah circuit court, founded on a promissory note. At the September term, 1869, the suit was dismissed as to Vaughan and Ayres. At the same term, the defendant, Pool, filed two pleas, which on the motion of the plaintiff, were stricken out. Which forms the matter of the first error assigned.
The first plea sets up, ia bar of the action, that the defendant, Pool, was the surety of Yaughari, on the note sued on, and that on the 7th day of September, 1869, he gave notice in writing to prosecute a suit against' his principal (as provided in the statute), the principal being a resident of said Tippah county, and that no such suit has been 'brought, but the plaintiff refuses so to do. The second plea is the same with the first', with the additional averments, that the suit was originally brought against Vaughan and Ayers, and had been dismissed .as to them.
If the order of the court is defensable upon any grounds, the presumption is, that it was for a sufficient reason. In Duncan v. McNeil & Co., the suit was dismissed as -to the maker of the note, and proceeded in as against the indorser ; this was complained of as not allowed by the statute requiring all the parties to negotiable paper to he sued in the same .action. It not appearing of record that the maker was a resident of this state, and in that case, it being proper to omit, or dismiss him from the suit, the order of the court was sustained, “ if in any circumstances, such action could have been proper.”
There is, say the supreme court, in Voorhies v. Bank of U. S., 10 Peters, 473, “ No principle of law better settled, than tbat every act of a court of bompetent jurisdiction shall he presumed to have been rightly done, till the contrary ap
In Price v. Sinclair, 5 S. & M., 258, it is said, pleadings are equally defective whether plead improperly in point of time or point of law, and motion to strike out, if put in out of the usual course of practice, is the proper mode of displacing them from the suit. Where pleas are regularly filed, but were entirely destitute of merits, they may be stricken out on motion. Marshall v. Hamilton, 41 Miss., 230.
, Pleas puis clcorien continuance are a good deal in the discretion of the court. The affidavit may be varied if the court perceives verity in them. McGowan v. Hay, 4 J. J. Marsh., 224. If the plea be frivolous and no answer to the cause of action, the plaintiff would not be put on his demurrer, but may disregard it. Of this character is the plea of covenants performed to a declaration on a bond with a condition assigning breaches. Shropshire v. Judge Probate, 4 How., 153; Postmaster Gen. v. Cochran, 2 Johns., 416; Simonton v. Bowman, 5 Peters, 148. A motion to strike out pleas brings to the notice of the court the right of the defendant to file them, both as to the order of time and glso whether it would subserve the ends of justice and the merits of the defense, to require them to be answered. The proposition implied in' ■ a plea puis darien continuance is that matter in abatement or bar of the suit has occurred since the continuance. These pleas set up matter in bar which occurred during the term, and the very day before the pleas were filed. And what is it ? That the defendant had notified, in writing, the plaintiff
This falls very far short of a defense within the statute. Bev. Code, 762, arts. 1, 2. The creditor is not obliged, after notice, to sue to the next term, unless the term commences thirty days after notice received. Here the notice was given on the 7th and plea filed the 8th of the same month. Surely the creditor could not be in default until a failure to sue at the next succeeding term. Nor is the matter of the first plea improved by the averments in the second, that the suit was dismissed as to Yaughan, the principal. The plaintiff may dismiss his suit as to one maker of a note, although he may be principal, and take judgment against the other makers. Wilkinson v. Flower, 37 Miss., 580; Crump v. Wooten, 41 Miss., 613. There cannot, however, be a dismissal against the maker and judgment against the indorser, if the former be a resident of the state.
The court must be satisfied in some form or other, that the plea is in good faith, and not frivolous ; therefore, the practice in the United States’courts, requires an affidavit. Stafford v. Woodruff, 2 S. & M., 191. By the English practice, the plea must be verified, Martin v. Wyvill, Stra., 492. The plea waives all former pleas, even when abatement is pleaded puis clarien continuance. The judgment whether upon verdict or demurrer, if against the plea is final quod recu-peret, and not respondant ouster. Calver v. Barney, 14 Wend., 161; 7 Bacon Abridg., 688. An objection that the plea was not put in proper time, or that it was not accompanied by proper affidavit, or that it was accompanied by another plea, must be taken by motion to set aside, and cannot be taken by demurrer. Ludlow v. McCrea, 1 Wend., 228; Nicoll v. Mason, 21 Wend., 334. On the 10th September, 1862, the pleas were stricken out, and leave given to file same pleas in thirty days, when duly sworn to, and cause continued. At the March term, 1870, the final judgment was rendered. So that it appears that the defendant had the opportunity of submitting his pleas to the usual test of their
Whenever special authority of the court is required to be given, the record must show it. The recital in the body of the plea that leave was given, amounts to no more than an averment of the pleader. The fact that the pleas were stricken out, in connection with the silence of the record on the point, ipakes it conclusive that the pleas in the - form in which they appear in the record, were not filed by permission of the court. There is nothing in these views inconsistent with, or intended to be inconsistent with the oft repeated decisions of this court, that a plea in the record (at the rendition of the judgment), will be presumed to be rightfully there, and that a judgment without dispensing of the plea will be erroneous.
All we mean to hold on this point is, that a motion to displace a plea made in due time, presents the same question as if an application were made to file the plea. It is proper, also, to observe, that we have examined the case of Hefron v. Mississippi Union Bank, 7 S. & M., 434. The reporter in his syllabus, says, “ It seems a plea of fuis darien continuance does not waive other pleas previously filed.” An examination of the opinion will show that such pleas are not alluded to at all, and no judicial expression of such effect made. If there were a special verdict finding the truth of these pleas for the defendant, the plaintiff would be entitled to judgment; and if there were issue upon them, and a finding for the defendant, the plaintiff would be entitled to judgment. Non obstante rendento for the pleas, confess the plaintiff is entitled to judgment, except it be avoided by the matter set up. There was no prejudice to the defendant, therefore, in striking them out.
The second assignment is, that the court erred in submitting the cause to .the jury, where there was no issue of fact to try. In a case decided at the April term, we adhered to
Let the judgment be affirmed.
