Greene v. Merchants' & Planters' Bank

Citations

• 73 Miss. 542

Syllabus

<p>1. Chancery Practice. New tn-ial at law. Meritorious defense.</p> <p>It is not error to deny relief on a bill in equity to set aside a judgment and for a new trial of the action in which it was rendered, where the complainant fails to show that he had a meritorious defense to the action; and. in such case, it is unnecessary to determine whether the judgment was procured by fraud, accident or mistake, and without negligence on complainant’s part.</p> <p>2. Res Judicata. Identity of cause of action.</p> <p>Where one has been sued as acceptor of a lost bill of exchange alleged to have been drawn by a certain firm to its own order, and indorsed by the firm and one of the members thereof, and on his. pleas of non est fact/um and payment, and the evidence in support, of the same, the defendant has defeated a recovery, he cannot, in a second suit against him as acceptor of a lost bill, in all respects, similar to the preceding bill, save that it was alleged to have been drawn not by the firm, but by said member thereof, maintain a plea of res judicata, since it is impossible to say on which of his pleas the jury found for him in the prior suit, and, if not on that of payment, the only matter determined was that he did not accept the particular bill then sued on, which would not preclude an action on the bill that he did accept.</p> <p>3. Pleading. Warner of affidamit. Construction of pleas. Sufficiency and effect.</p> <p>When it appears that the plea of non est factum accompanying that of payment in the first suit was not sworn to, but treated by the parties and the court below as if free from that objection, and that, in the second suit, there was no plea of payment, but only those of res judicata and non ass wmipsit, the case, on defendant’s bill in equity for a new trial, alleging that the demand had been in fact paid prior to the second suit, should be considered as though in the first suit the defendant had plead non est factum and payment. and in the second res ju