Bennett v. Holloway

55 Miss. 211

• Court: Mississippi Supreme Court
• Decided: October 15, 1877
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

The motion for a new trial, not having been disposed of at the term at which it was made, was still pending, and was continued by operation of law, and was properly acted on at the next term. City of Vicksburg v. Hennessey, 52 Miss.

It was erroneous to render judgment for the plaintiff below on his motion, based on the ground that the defendant had pleaded “two pleas that cannot be joined in law.” This action of the court was based on a misconception of section 597 of the Code, which has no reference to the action of replevin, which is governed by chapter 16 of the Code. The plea of not guilty is the only one provided for in replevin, as regulated by that chapter of the Code, and any additional plea may be stricken out, on motion, or treated as a nullity, but section 597 relates only to those actions in which several pleas in bar may be pleaded together.

The evidence entitled the defendant below to the verdict, and the motion for a new trial should have been granted.

The judgment is reversed and the verdict is set aside, and the cause is remanded for a new trial, the plaintiff in error to recover of the defendant in error, not only the costs of this case in this court, to be taxed, but all the costs he was required to pay as the condition of having set aside the judgments erroneously entered against him on the motion of the plaintiff' below.