McMillan v. Causey

43 Miss. 227

• Court: Mississippi Supreme Court
• Decided: May 15, 1870
• Status: Published

Opinion

Simrall, J.:

Suit was brought by James M. Causey, in the circuit court of Amite county, against the plaintiffs in error, founded on a promissory note. Defendants interposed the plea of the general issue, and a special plea, stating, among other things, that the consideration of the note was the sale, to one W. T. McMillan, of a slave, under an order of the probate court, licensing James M. Causey to sell as guardian, etc.; that the order was void because no notice or citation was served on his wards; no guardian ad litem appointed; that before the note became due, and before W. T. McMillan discovered the defect in the title, he died; and his administrator, before he discovered the pretended title was void, was prevented from delivering the slave up to the lawful owner by the emancipation of the slave by the military power of the United States; that the defendants are sureties, and never discovered the defect of title until after suit brought, etc., etc. To this plea a demurrer was sustained. Verdict and judgment for the plaintiff.

The first and second errors assigned are, that the demurrer ought not to have been sustained, and the judgment should have been respondeat ouster. We held in the case of Whitworth et al. v. Carter

* (Opinion Book A., p. 66, decided at this term), that the matters disclosed in this plea were no defense against the payment of the purchase money, and that we would not consider the question longer as an open one. In that case we referred to the former adjudications on the point. The statute provides that on sustaining a demurrer to a plea, the judgment shall be respondeat ouster. Although that order is not made in form, yet the record states that the demurrer was sustained on the 28th of May, 1867, and immediately follows : “Thereupon the defendants, by attorney, filed their written notice in the words and figures to-wit: ” This notice gave information to the plaintiff “ that on the trial under the general issue” the defendants would offer to prove all the facts contained in the plea, with some variation in the statement of them. It- thus appears that the defendants below got all the benefit of a respondeat ouster, as fully as they could have got it by putting in another plea.

We have been referred by counsel of plaintiffs in error, to the ease of Lee v. Dozier, 40 Miss. Rep., 478. In that case the judgment was reversed because, on sustaining the demurrer to the special pleas, there was not the award of respondeat ouster.

The Reporter, in his abstract of the record, states the fact, thus : “ The demurrer being sustained (to special pleas), the court proceeded to submit the issue presented on the first plea (general issue) to a jury.” In the opinion, the court say, “the demurrer was properly sustained to both these pleas, and thereupon the court ought to have rendered judgment repondeat ouster, as required by the statute.” Instead of this, no judgment was rendered on the demurrer, but a jury was forthwith empaneled to try the issue on non assumpsit.” There is evidently a misprint of the last clause of the paragraph of the opinion.

The difference between the case of Dozier and Lee, and the one before us, is, that these plaintiffs in error, did in fact, after their demurrer was overruled, reply over in their “ notice,” all that they proposed to make of defense. If the matter had been put in the shape of another plea, and the court had recognized the plea, could these defendants below be heard to say in this court, that the court had inadvertently omitted to give the judgment to “reply over ? ”

The next error complained of is, that a valid judgment was not entered on the demurrer. It sufficiently appears that the judicial mind did act on the issue of law, and put its sentence in phrase, as is reasonably clear, if not usual. The last error such is that the demurrer ought to have been extended to the declaration. The declaration is substantially good. We have examined the objections made by counsel, and do not think they are well taken. Let the judgment of the court below be affirmed.

Supra, p. 61.