Lauderdale County MsArchives Court.....Warbington, Mr 1839
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:35 am

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

Warbington v. Norris.

pages 227-229

On demurrer to the declaration, it is discretionary with the court, under the 
statute, to allow the plaintiff to amend and go to trial instanter.

The statute authorises the court to reject a demurrer whenever it shall be 
manifestly frivolous and intended only for delay.

Where the judgment was for "five hundred dollars and fourteen cents, the 
amount of the promissory note in said plaintiff's declaration mentioned with 
costs:" Held, although the judgment is not technically formal, yet it is 
substantially correct.

ERROR to the circuit court of Lauderdale county.

This was an action of assumpsit on a promissory note.

At July Special Term, 1838, demurrer to declaration sustained, with leave to 
amend.

To amended declaration, was filed the following, to wit:—"Demurrer in short 
for the following causes; to wit:—1. Because, it does not appear in and by the 
breach of said declaration, that the said defendants did not pay the amount 
therein demanded, jointiy, according to the promise in said declaration."

This was objected to by the court, as frivolous—and the defendants failing to 
make affidavit of merits and plead, but saying nothing in bar of said 
plaintiff—judgment for "five hundred dollars and fourteen cents the amount of 
the promissory note in said plaintiff's declaration mentioned, together with 
costs."

Motion to set aside the judgment on account of rejecting the demurrer as 
frivolous, overruled. Writ of error to this court.

Heyfron, for plaintiff in error.

Lea, contra.

1. The first assignment of error, to wit, that defendarns below were required 
to go to trial instanter on sustaining the demurrer, is not true in fact; for 
they had leave, and did pretend, to demur to the amended declaration. If the 
assignment was intended to assert a right in the defendants below to have a 
continuance on the sustaining of the demurrer, it is a mistake in law. The 
discretion of the court was rightly exercised in this case; but, if not, it 
was purely a matter of discretion in the court below, not subject to revision 
on error in this court. 3 Com. Dig. 566, Error (A), and cases there cited.

2. The second assignment, for setting aside demurrer to amended declaration as 
frivolous, is answered by a new inspection of that pretended demurrer; but the 
supposed objection to the dec1aration is a plain mistake.

3. The third assigment, for giving judgment on rejecting the frivolous 
demurrer, the defendants below failing to show merits by affidavit and plead, 
is answered by the Rev. Code, p. 119, 120.

4. The fourth assignment, that the judgment is not given for damages, is 
almost too idle to be noticed, as the judgment is given for the proper number 
of dollars.

5. The fifth assignment, that the part of the judgment for costs is not for 
any certain sum thereof, is an objection to all practice, and to what is 
absolutely necessary. But id certum est, &c. 

Mr. Justice TROTTER delivered the opinion of the court.

There are several errors assigned, all of which may, however, be reduced to 
the following points:—

1. Was the court right in permitting the plaintiff to amend his declaration, 
and proceed to trial at the same term?

2. Did the court err in rejecting the demurrer to the amended declaration?

3. Is the judgment in the proper form?

1. The 99th section of the circuit court law, Revised Code, p. 126, confers 
upon the circuit courts, full power to allow amendments to be made in all 
proceedings whatsoever before verdict, upon such terms as they in their 
discretion shall think just. The court in this case, exercised a discretion 
conferred upon it by law, and this court has no power to revise its 
determination upon error. 3 Comyn's Dig. p. 566, Error, A.

2. Upon the second point, presented by the assignment of errors, there can be 
no difficulty. The statute authorises the court to reject a demurrer whenever 
it shall appear to be manifestly frivolous, and intended only for delay. The 
demurrer in this case was evidently of this character, and the court did right 
in refusing to receive it, and in rendering a final judgment for the 
plaintiff. The defendants presented no affidavit of merits as the statute 
directs in such cases. And the judgment was, therefore, properly rendered.

3. The last ground of error is to the form of the judgment. But this objection 
we deem altogether unfounded. The judgment is for the sum of "five hundred 
dollars and fourteen cents, the amount of the promissory note in said 
plaintiff's declaration mentioned," &c. This judgment is well authorised by 
the pleadings, and though it is not technically formal, yet it is 
substantially correct.

Let the judgment be affirmed, with damages and costs.


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.

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