Aaron v. Podesta

Citations

• 60 Miss. 82

Syllabus

<p>I. Peactice. Account sworn to. No denial by affidavit. Sect. 1627, Code 1S80, construed.</p> <p>Sect. 1627 of tlie Code of 1880 provides that in any action upon an open account, to which is attached the affidavit of the plaintiff that the account is correct and due by the defendants, the plaintiff shall be entitled “to judgment at the trial term, unless the defendant shall make affidavit, and file with his plea, that the account is not correct, particularizing wherein it is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment for such part of said account as the defendant, by his affidavit, shall not deny to be true.” P. brought an action before a justice of the peace, upon an open account sworn to as provided in this statute, and obtained judgment by default against the defendant. But the latter appealed to the Circuit Court, and there the plaintiff moved for judgment, on the ground that the defendant had not filed any affidavit denying the correctness of the account, or any part thereof. The defendant opposed the motion, and asked to have the case submitted to a jury for a trial; but the motion was granted and judgment rendered for the plaintiff. Held, that the defendant was not precluded by the statute from interposing, as a defence to the action, affirmative matter in confession and avoidance; and as he demanded that the case be submitted to a jury for trial, it must be presumed that it was for the purpose of making some permissible defence.</p> <p>2. Same. Judgment under seat. 1627, Code 1880. Rule of evidence.</p> <p>The rule which entitles a plaintiff to a judgment under the provisions of sect. 1627 of the Code of 1880 is a rule of evidence, and not one of pleading or practice.</p>