Town v. Lupkin & Son

75 So. 546 | Miss. | 1917

Holden, J.,

delivered the opinion of the court,

The appellant, Mrs. Nellie Town, filed suit in the justice of the peace court in Coahoma county against the appellees, H. Lupkin & Son, for two hundred dollars for rent claimed to be due her for the use of a certain storehouse occupied by the appellees in Jonestown. There was a judgment in her favor in the justice court, and Lupkin & Son appealed to the circuit court, where they made a motion to dismiss the suit upon the ground that the statement of the cause of action filed in the justice court was indefinite and insufficient, which motion was sustained by the circuit judge, and the ease dismissed, from which this appeal is taken here.

The only question presented by this appeal which deserves notice is whether or not the “written statement of the cause of action lodged with the justice of the peace” was a sufficient statement of the cause of action within the meaning of section 2730, Code of 1906. Here is the written statement of the cause of action filed in the justice court:

“Jonestown, Miss.

“For and in consideration of one dollar cash in hand paid, and sixty notes of fifty dollars each, due October 1, 1910, and one due on the first of each succeeding months for sixty months thereafter,

“I this day lease to H. Lopkin & Son for a term of five years beginning October 1, 1910, and ending October 1, 1915, that certain storehouse on the south side of main street, in the town of Jonestown, Miss., and known as the Will Sing Storehouse, and it is agreed and understood that on the failure of the payment of any one of these notes within ten days after due this contract shall become null and void at the option of the .undersigned, Mrs. Nellie H. Town, lessor.

“Signed in duplicate this 19th day of September, 1910. H. Lupkin & Son.

“Mrs. Nellie H. Town. '

“$200 rent claimed on this contract.”

We are clearly of the opinion that the above statement of the cause of action lodged with the justice of the peace was sufficient for all jurisdictional purposes, and fully meets the requirements of the statute with refrence-to the commencement of suits in justice court. The rent contract, or a copy of it, and the statement that “two hundred dollars rent claimed on this contract” .lodged with the justice of the peace, substantially informed the defendant of the nature and extent of the claim presented in the suit. It also appears from this record that the appellees made no motion for a bill of particulars nor requested that the plaintiff be required to be more specific in her demand. On the other hand, it appears that, when the motion was made to dismiss the suit, the plaintiff asked leave of the court to amend her statement of the cause of action so as to more fully inform the defendants of the exact and specific claim upon which her suit was based; but the •court denied her the right to amend, and peremptorily dismissed the suit. This was error.

The appellees contended that only one hundred dollars was due under the rent contract at the time the suit was filed, for two hundred dollars. This may be true yet it could not prevent a recovery by the plaintiff for one hundred dollars. Some contention is made also -by the appellees that the written contract filed specifies the execution of notes by the lessee; but we find no testimony in the record, one way or the other, regarding any notes, but if there were notes in existance, which of course would be the best evidence in the case, the objection to the evidence should have been raised by the appellees when the testimony was offered by the plaintiff to prove the contract sued on without offering the notes in evidence. ■ Furthermore, it seems that the appellees filed an offset in the case in justice court, and the cause may have been litigated there upon the merits.

Pleadings in justice courts should be treated with great liberality, with a view to bringing the issues in dispute between the parties to trial upon the merits. The substance of the cause of action, as stated by the writing “lodged” with the court, should be looked to, and not the form. The appellees contend that the original contract was not marked “filed” by the justice of the peace, and that for this reason the suit was properly dismissed by the circuit court. In the first place, the law does not require that the written statement he “filed” or marked “filed,”- but it shall be “lodged” with the justice of the peace. The statement here in question was “lodged” 'with the justice of the peace, and a copy of it was marked “filed” by him and certified with the other papers to the circuit court. There is npthing whatever in this contention. It is further contended by the appellees that a judgement tendered on this statement of the cause of action could not be pleaded as res adjudicaba, in another suit for the same indebtedness. We disagree with counsel in this contention, -as we think that the written statement lodged with the justice of the peace by the plaintiff is sufficiently specific,- or could have been made so, upon which to base- a judgement that could be pleaded in bar in any subsequent suit upon the same cause of action. The judgement of the lower court is- reversed and the case remanded.

Reversed and remanded.