76 Miss. 502 | Miss. | 1898
delivered the opinion of the court.
Cyrus, one of the original defendants, interposed the plea of the general issue at the October term, 1897, of the circuit court, and while this plea remained, and without any suggestion of the death of Cyrus, or any revivor against his representatives, at the succeeding term Fitzgerald, as administrator of Cyrus, filed his plea in abatement, on the ground that the land commissioner had no authority to institute the suit. To this plea in abatement the plaintiff demurred and the demurrer was by the court overruled. The parties then went to a jury on the plea in abatement, and under instruction from the court returned a verdict on that plea in favor of the defendant, and thereupon the suit was by the court dismissed.
Before this, however, an order had been entered dismissing the suit as to the Yazoo. & Mississippi Yalley Bailroad Company, one of the defendants. A motion was thereafter promptly made by counsel for plaintiff to set aside this order of dismissal, for the reason, as stated in the motion, that this order had been made in the absence of plaintiff’s counsel, and without his knowledge or consent. This motion was never acted upon, so far as the record discloses.
The second error assigned goes to the alleged action of the trial court in not sustaining the motion to strike from the files the plea in bar and the plea in abatement; but no such motion appears in the transcript, nor, of course, any action, of the court upon it.
The record is most imperfect and unsatisfactory, but some of the errors complained of aie manifest.
Reversed and remanded.