Tierney v. Duffy

59 Miss. 364

• Court: Mississippi Supreme Court
• Decided: April 15, 1882
• Status: Published

Opinion

Ciialmers, C. J.,

delivered the opinion of the court.

No bill of particulars was annexed to the declaration, but the declaration itself specified accurately the two items of account sued for, with the charge for each. This was sufficient and dispensed with the annexation of the bill of particulars. Nevitt v. Rabe, 5 How. 653. Moreover, no objection to the absence of a bill of particulars was made in the lower court, and hence cannot be made in this court. Bank of Louisiana v. Ballard, 7 How. 371.

The defendant’s pleas were demurred to; and, without any disposition having been made of the demurrer, he filed a good plea, upon which the trial took place, and verdict and judgment were given against him. He cannot now object that there had been no disposition of the plaintiff’s demurrer. He had confessed it by filing the new plea, and the trial was had upon that. It is not for him to say that this was erroneous. Tittle v. Bonner, 53 Miss. 578.

There would have been no abuse of discretion if the court below had granted a new trial upon the showing made by the affidavit filed upon the application for it; but the court seems to have attentively considered it, and, in consequence probably of the facts disclosed in the investigation, required the plaintiff to remit a portion of the verdict recovered. We cannot say that there vras error in overruling the motion for a new trial. ’ Affirmed.