Veatch v. Greenwood

Supreme Court of Arkansas

Veatch v. Greenwood

23 Ark. 637

DecidedDecember 15, 1861

StatusPublished

This text of 23 Ark. 637 (Veatch v. Greenwood) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Veatch v. Greenwood, 23 Ark. 637 (Ark. 1861).

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Opinion

Mr. Justice Compton

delivered the opinion of the Court.

Assumpsit by Greenwood against Yeatch and Wardlow. Veatch demurred to the declaration for misjoinder of counts, upon the ground that some of the counts were against Yeatch and Wardlow, and others against Yeatch alone. Pending' the demurrer, the plaintiff discontinued as to Wardlow, and the court sustained the demurrer as to the third and fourth, and overruled it as to the first and second counts. Yeatch rested, final judgment was rendered against him, and he appealed.'.

The demurrer was to the whole declaration; and in refusing to sustain it to that extent, the court erred. In case of misjoinder of counts, the entire declaration is bad, and the rule is, that the plaintiff cannot, if the declaration be demurred to, aid the mistake by entering a nolle prosequi, so as to prevent the’ operation of the demurrer for misjoinder; though the court may, and, in general, should grant him leave to amend by striking out some of the counts on payment of costs. Chit, on Plead., marg. p. 206; Drummond vs. Dorant, 4 T. Rep. 360; Jennings vs. Newman, Ib. 347. Here, there was no motion for leave to strike out.

Let the judgment be reversed, and the cause remanded, to be proceeded in according to law,

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Mr. Justice Compton

delivered the opinion of the Court.

Assumpsit by Greenwood against Yeatch and Wardlow. Veatch demurred to the declaration for misjoinder of counts, upon the ground that some of the counts were against Yeatch and Wardlow, and others against Yeatch alone. Pending' the demurrer, the plaintiff discontinued as to Wardlow, and the court sustained the demurrer as to the third and fourth, and overruled it as to the first and second counts. Yeatch rested, final judgment was rendered against him, and he appealed.'.

The demurrer was to the whole declaration; and in refusing to sustain it to that extent, the court erred. In case of misjoinder of counts, the entire declaration is bad, and the rule is, that the plaintiff cannot, if the declaration be demurred to, aid the mistake by entering a nolle prosequi, so as to prevent the’ operation of the demurrer for misjoinder; though the court may, and, in general, should grant him leave to amend by striking out some of the counts on payment of costs. Chit, on Plead., marg. p. 206; Drummond vs. Dorant, 4 T. Rep. 360; Jennings vs. Newman, Ib. 347. Here, there was no motion for leave to strike out.

Let the judgment be reversed, and the cause remanded, to be proceeded in according to law,

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23 Ark. 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/veatch-v-greenwood-ark-1861.