Wooten v. Wingate

14 Miss. 271

Opinion

Mr. Justice Clayton

delivered the opinion of the court.

There is but a single point for decision in this cause. After several pleas had been filed, and after two verdicts and new trials, the court upon motion set aside the service of the writ in the case, and gave a final judgment for the defendant. This was palpably erroneous. It. is said here, however, that the error cannot be corrected in this court, because from the bill of exceptions, it appears that the order was made at the instance of the plaintiff himself. The bill of exceptions does so state the fact; but the judgment of the court states that it was done on motion of the defendant.

Where the record is itself contradictory in its parts, we must, for the furtherance of justice, adopt that construction if practicable, which will make it sensible and consistent; not one which is wholly absurd, and which would preclude relief. It is difficult to believe, that the plaintiff in one instant moved to have himself turned out of court, and in the next excepted to the action of the court in doing it. If he desired to go out, the door was always open for a nonsuit.

The judgment will therefore be reversed, and the cause remanded for farther proceedings.