Dozier v. Anstill & Marshall

16 Miss. 528

• Court: Court of Appeals of Mississippi
• Decided: January 15, 1847
• Status: Published

Opinion

Mr. Justice ThacheR

delivered the opinion of the court.

Action of assumpsit upon a promissory note. Plea von as-sumpsit. Upon the trial, the plaintiff below offered in evidence a promissory note, to which evidence the defendant demurred. The plaintiff does not seem to have joined in this demurrer. The record, which presents the case irregularly, contains, just following the plea of non assumpsit, something that seems to relate to the demurrer to the evidence, but which bears more resemblance to a replication to a special plea. It purports to be a replication to a plea. The circumstance that the record asserts that a joinder existed to the demurrers, cannot supply its •place in the record. The demurrer to the evidence is probably erroneous, but the plaintiff took his judgment under it, and therefore treated it as a sufficient demurrer. It being a demurrer to evidence in a matter of writing, it was necessary that the plaintiff should join in it. Gibson v. Hunter, 2 H. Bla. 187. The consequence is that the court erred in withdrawing the case from the jury, and the judgment of the circuit court is therefore reversed.

The cause is remanded for further proceedings, it now standing upon the demurrer to the evidence, as filed by defendant below.