27 Miss. 359 | Miss. | 1854
delivered the opinion of the court.
William Ross, Thomas Strong, and John W. D. Ross, partners under the firm of Ross, Strong & Co., suing for the use of James N. Hart, sued the defendant on a promissory note, made payable to that firm. The case turned below upon the plea of the statute of limitations, to which the plaintiff replied, that a suit was brought in the same circuit court upon the same note in the name of the nominal plaintiffs Ross and Strong, joined with the name of William Hart, which suit was for the benefit of James N. Hart, the usee in this suit, and that judgment was rendered in that suit for the plaintiff, but was reversed on writ of error in this court; and that this suit was commenced within one year next after said reversal. To this the defendant filed a demurrer, which was sustained, and judgment rendered thereon for the defendant.
It will be perceived here, that the parties to the present action are not the same as those to the former judgment, which was reversed. That suit was in the name of Ross, Strong & Hart, parties constituting the firm of Ross, Strong & Co. This suit is in the name of Ross, Strong & Ross, partners constituting the firm of Ross, Strong & Co., suing for the use of James. N. Hart. Thus both the nominal and real parties plaintiffs in the-two actions are different. The statute of 1822, Hutch. Dig. 827,. § 14, under which this replication is attempted to be justified, giving the right to the plaintiff “ to commence a new action within one year after such judgment reversed,” manifestly has-reference to an action to be commenced by the same plaintiffs.. It is regarded as an equitable continuation of the same action already commenced, in the name or right of the same plaintiffs. But it cannot be held to give the right of action to parties who.
Nor do we think it was error in the court below to render final judgment on the demurrer. It is not the practice to allow the plaintiff to answer over upon a demurrer being sustained to the declaration, except upon affidavit. The practice has been sanctioned to permit the defendant to answer over upon a demurrer to a plea being sustained, but it has not been extended to the replication.
The judgment is affirmed.
