Henry v. Shepherd

52 Miss. 125

• Court: Mississippi Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

This suit was dismissed by the circuit judge without plaintiff being allowed to go to the jury. This action was based, and is sought to be upheld, upon two grounds: 1st, that plaintiff failed to give security for costs when thereto required upon affidavit filed; and, 2d, that the declaration did not ■disclose a just cause of action.

Plaintiff commenced her suit in forma pauperis by taking the oath prescribed by § 571 of the Code. Having so commenced it, she was entitled to prosecute it to final judgment, and cannot be deprived of the right by a motion for security for costs, under § 572. The latter of these sections is modified and controlled by the former, or, in other words, § 571 operates as a proviso on § 572.

The circuit judge had no right to dismiss the suit as showing no just cause of action. The declaration is correctly drawn. The suit was for damages sustained in the willful and wrongful Tilling, by plaintiff, of defendant’s chickens.

The damages are laid at $5,000.' This claim of damage .■seems ludicrously, if not maliciously, excessive, but this will not prevent such recovery as the plaintiff may show herself ■entitled to, nor does the cause of action fall within the maxim de minimis non curat lex.

The cause is reversed and remanded, and writ oí procedendo awarded.