Vickery v. Rester

5 Miss. 293

• Court: Mississippi Supreme Court
• Decided: January 15, 1840
• Status: Published

Opinion

Opinion of the court by

Mr. Justice Turner.

Two questions are presented in this case:

1st. As to the dismissal of the suit as to one of the defendants in the court below.

This point has been so often ruled in this court, that it is not necessary again to discuss it. There is no error in this part of the case.

2d. That judgment was taken without filing the note sued on.

The long established practice of our courts, is in favor of the principle assumed by the plaintiff in error.. Although there is a judgment by default in an action on a note or bond, unless sued on as a lost instrument, the courts will not permit a judgment to be taken. The note should be produced and filed, not only for the purpose of seeing whether there are credits endorsed, but for the sake of propriety, and for the benefit of the defendant.

But the point does not arise in this case, as it does not appear by the record that the note was not produced. Oyer is not re. quired in such case as this; and there is no bill of exceptions, by which means it might have been placed on the record. For aught we know, the note may be on file in the court below.

Judgment must be aifirmed.