Shaw v. Laurel Oil & Fertilizer Co.

45 So. 878 | Miss. | 1908

Mayes, <7.,

delivered the opinion of the court.

The ease stated in the second declaration, filed in September,. 1906, is practically the same cause of action .as that stated in the one filed to the February term, 1905. To the declaration first filed, defendant interposed a demurrer reaching the merits of the' case. The demurrer was confessed by appellant, and thirty days’ leave given after the adjournment of court to 'file an amended declaration. When the demurrer was sustained to the first declaration, and at the same term in 1905, there was q motion to require the plaintiff to give security for costs, which motion was sustained. At the February term, 1906, no bond having been given, as required by the order of the court, for the payment of the costs, a motion was made by the defendant to dismiss the case because of the failure of plaintiff to give bond as required. This motion was sustained, and the cause dismissed, on the 22d day of February, 1906. Nothing further was done in the case, so far as the record shows, until September, 1906, when a new declaration was filed and a new suit commenced for the same cause of action; the second declaration slightly differing from the first, but based on the same cause of' action as the first. . .

It will be noticed that there are two judgments in this case;. one dismissing the first suit, because no bond was given as required by the order of the court, and another sustaining the confessed demurrer. The judgment dismissing the suit for x failure to give bond for cost was not on the merits of the case, and, if this were the only judgment involved, we would have no hesitation in reversing it; but there is another judgment on the demurrer, which did involve the merits, and allowed thirty days in which to amend. The amendment was never made,, and the record does not show that there was ever any application to the court after the expiration of the thirty days to extend the time. This being the case, under this demurrer there was a judgment on the merits, and the plea of res adjudicata was proper. There was no voluntary dismissal of the cause on the part of the plaintiff, though it is recited that the demurrer is confessed and the plaintiff allowed thirty days to file an amended declaration. Of course, when the demurrer was confessed, under the grounds assigned in the demurrer which went to the merits, it was a confession on the part of the plaintiff that the reasons assigned in the demurrer were sufficient to defeat the suit. As was stated above, there was no voluntary dismissal or agreement to dismiss; but the demurrer, which went to the merits of the case, w;as confessed. This case falls under the rule announced in the case of Weathersby v. Pearl River Lumber Co., 88 Miss., 535, 41 South., 65; and the confession by the plaintiff of the demurrer “was a final adjudication of what was pleaded, or might properly have been pleaded, in the bill in that cause.” Straw v. Illinois Central R. R. Co., 73 Miss., 446, 18 South., 847; Jacobs v. Insurance Company, 71 Miss., 656, 15 South., 639.

Affirmed.