45 So. 835 | Miss. | 1908
delivered the opinion of the court.
There was much confusion in the trial of this case in the court below in respect to the pleadings. There is nothing in the record to show that Mrs. Wright was the representative of J. E. Wright or his partner. Code 1906, § 2845, expressly provides that the officer mailing a distress or seizure shall give notice thereof, together with the cause of taking, to the tenant or his representative in person, if to be found. Either one of the partners could readily have been found. The motion to quash should have been sustained; but, as the party came in later and pleaded, there is no occasion now to quash the writ on the return of the case to the court below.
Counsel for appellant say, correctly enough, that they literally followed the pleadings set out in Code 1906, ch. 76. The trouble is that they followed them too literally. Because of this the court below was led into error. Eollowing literally the form of replication in Code 1906, § 2863, provided for the tenant, the issue made technically by the pleading was whether or not Mrs. Wright, or those under whom she held the hotel, owed any rent, and not whether the property was hers.’ The learned counsel should-have noted Code 1906, § 2871, and the closing sentence therein, to-wit: “The pleadings and proceedings shall be conformed so as to present the proper issues.” The replication for the tenant, of course, is not the proper replication for the third party, claiming replevin. The real issue before the court on the merits of the case was whether the property was the property of
This is the serious error in the ease, for which the judgment must be reversed, and the cause remanded. Justice must not be sacrificed to any technical error in the pleading, when the real issue is plain.
'Reversed.