Aldridge v. Grider ex rel. Moore

21 Miss. 281

Opinion

Mr. Justice Smith

delivered the opinion of the^urt.

This was an action of assumpsit brought on a nou^raae by plaintiff in error. In bar of the action two special pleas were filed, to each of which plaintiff below replied. The replication to the first was demurred to and the demurrer overruled. The replication to the second plea appears from the record to have been unanswered.

The first error assigned is to the decision overruling the demurrer to the replication to the first plea.

The replication was defective, but the demurrer should have been extended to the plea, which was equally obnoxious.

After the judgment on the demurrer, the court ordered both pleas to be stricken out, and the general issue to be substituted. To this proceeding neither party objected, but it is now made a ground of exception. Hence the question arises, whether the court, in thus ordering the pleas previously tendered by the defendant to be discarded, and the cause to be tried on the general issue, exceeded the just limits of its authority.

Both of the defendant’s pleas were exceptionable. The judge, therefore, was bound by the express direction of the statute, (Hutch! Dig. 854, § 21,) “To amend and perfect them, so that the merits of the controversy might be fairly put to the jury.” So far as the the grounds of defence were disclosed 'by the defendant’s pleas, it is obvious that they could have been made available, if true, under the general issue. Hence the record does not show that the authority of the court was erroneously exercised, by the substitution of a plea which did not put the merits of the controversy fairly to the jury. And the presumption applies on which, as a fixed rule, the proceedings of a court of competent jurisdiction are held to be correct, unless the contrary be shown.

Moreover, there is nothing in the record by which it appears that the defendant did not have the full benefit of every ground of defence which he had to the action of the plain tiff; and as he made no opposition to the order of the court, even if it were erroneous, he should not now be allowed to object.

Let the judgment be affirmed.