Attala County MsArchives Court.....Irving, Mr 1839
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 9:19 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Irving et al. v. Montgomery.

page 191

When the plaintiff takes judgment by default, for want of plea, the record 
must show there was no plea filed at the time of the rendition of the judgment.

ERROR to the circuit court of Attala county.

Huntington, for plaintiffs in error.

Shackleford, contra.

Mr. Justice TROTTER delivered the opinion of the court.

This case is brought before this court by a writ of error to the circuit court 
of Attala county. The defendant in error commenced an action of assumpsit in 
the court below, on a promisory note made by the plaintiffs in error, and 
payable to H. B. Scarborough or order, and endorsed to him by the said 
Scarborough. The defendants filed the plea of non assumpsit and payment, with 
a bill of particulars, as required by the statute. There was no replication to 
the plea of payment, nor any notice taken of either plea in the further 
progress of the cause. The record shows that a judgment by default was taken 
against the defendants in the court below, for the amount of the note sued on. 
A motion was made to set aside the judgment which was overruled by the court. 
It was certainly error to render a judgment by default in the face of these 
pleas; they are an answer to the plaintiff’s cause of action, and there should 
have been some disposition made of them. It was insisted by the counsel for 
the defendant in error, that the pleas were not filed when the judgment was 
rendered; but there is nothing upon the record to warrant any such conclusion; 
and if such was the case, it was the duty of the defendant to have placed the 
fact upon the record.

The judgment must be reversed and the cause remanded for further proceedings.

 
Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

File at: http://files.usgwarchives.net/ms/attala/court/irving48wl.txt

This file has been created by a form at http://www.poppet.org/msfiles/

File size: 2.7 Kb