Lackey v. Saint Louis & San Francisco R. R.

Citations

• 102 Miss. 339
• 59 So. 97

Syllabus

<p>1. Pueading. Motion to strike out parts of pleading. Requisites. Judgment. Issues. Instructions. Excluding issues. Motions.</p> <p>A motion to strike out certain portions of a declaration should not be made orally, but should be in writing and filed with the clerk, and the judgment of the court, overruling or sustaining it, should be entered on the minutes. In the absence of such an order entered on the minutes of the court, the declaration remains as it was originally written.</p> <p>2. Judgment. Pleading. Issue. Evictence.</p> <p>Where in a suit against a railroad company for failure to keep open ditches on its right of way to protect adjacent lands, the declaration alleged that the railroad company negligently constructed its roadbed so that it obstructed the waters of a creek and caused it to flood plaintiff’s land and that plaintiff obtained judgment against it on account thereof. That as a settlement the railroad company contracted and agreed to maintain ditches on its right of way to protect plaintiff’s land and to pay him one hundred and fifty dollars in consideration of his releasing the company from liability for damages. These allegations do not show that evidence of the judgment were admissible, since if the one hundred and fifty dollars referred to in the contract and the work to be done by the railroad was in satisfaction of the judgment, then this satisfaction of the judgment was'a part of the consideration of the contract and could have been proven, but if this contract related only to a settlement of damages which had accrued since the rendition of the former judgment and damages to accrue thereafter, this evidence of the former judgment was irrelevant and not admissible.</p> <p>3. Tbial. Instructions. Excluding issues.</p> <p>Where in a suit against a railroad company for failure to keep open ditches on its right of way to protect adjacent lands, the evidence showed that such land was always flooded in time of high water, hut that when the ditch