Spain v. Winter

1 Miss. 152

• Court: Mississippi Supreme Court
• Decided: June 15, 1824
• Status: Published

Opinion

OPINION OF THE COURT — bv the

Hon. POWHATTAN ELLIS,

This was an action of trespass on the case, on a promissory note, executed by Spain to the defendant, payable three days after date. When this case was called at the May term, 1822, of the superior court of Adams county — the defendant below submitted the following affidavit:

STATE OF MISSISSIPPI,) Adams County, s. s. )

Personally appeared hefore the undersigned justice of the peace for said county, Richard Spain, and made oath, that he is a resident and freeholder of the county of Jefferson, and State of Mississippi, and not a freeholder and resident of Adams county, and State aforesaid.

RICHARD SPAIN.

Sworn and subscribed, this 18th day of March, 1822, before

H. TOOLY, justice of the peace.

'and moved the court to change-the venue to Jefferson county, which motion was overruled, and judgement entered for the plaintiff for the amount of the note, interest and costs. To this judgment there was a writ of error sued out, returnable into this court.

Assignment on Eraioits.

First, That the court overruled the motion to change the same.

Second, The court gave judgment for the plaintiff, without ruling defendant to plead, or in any manner hearing his defence to the action.

Third, That no judgment by default was taken, or writ of enquiry awarded.

The court below erred in overruling the motion to change the venue.— See Revised Code, page 67 — section 16.

Upon the rule recognized in the case of Levi Kendricks, administrator, vs. William Snodgrass, delivered at the January term, 1822, the judgment iii this case must be reversed. In that case, it appeared from the record, that no plea had been filed, or judgment by default taken, upon which the .judgment of the court was rendered, prerequisites absolutely necessary to ■authorize the court to render judgment against the defendant below.

Judgment of the court below reversed, and venire facias deaovo •awarded.