Unknown County MsArchives Court.....Selser, Isaac N 1834
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File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 9:31 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

ISAAC N. SELSER vs. G. F. WILKINSON.

pages 108-109

After a plea of payment it is wholly irregular to enter up judgment against 
the defendant by default.


OPINION OF THE COURT—By THE HON. POWHATTAN ELLIS.

The plaintiff assigns for error the following facts: First, The court erred in 
making judgment by default, when in fact the defendant below plead issuably to 
the declaration of the plaintiff: Secondly, The court should have directed a 
non suit. Looking to the record, I find the plaintiff Wilkinson, instituted 
his action of assumpsit against the defendant Selser, at the April term of 
1822. The declaration is filed, to which there is a plea of payment, and 
judgment by default taken. I presume it need not be stated, it was wholly 
irregular for the court to enter up judgment by default, when the defendant 
came in and plead payment, &c., which he was ready to verify, and prayed the 
judgment of the court. An issue should have been directed, and a jury 
empannelled to try the cause, or the plea of payment waived by the defendant, 
to authorise the rendition of the judgment spread upon the record.

Let the judgment of the court below be reversed, and a venire de novo awarded.

Judges Hampton and Winston concurring.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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