McAdory v. Turner

Citations

• 56 Miss. 666

Syllabus

<p>1. Peactice. Time of pleading. Power of Circuit Court.</p> <p>The Circuit Court has authority, before judgment rendered in a ease, to allow a defendant to plead out of time, where a reasonable excuse is shown for the failure-to plead sooner; and this authority is not denied in Pool v. Bill, 44 Miss. 306.</p> <p>2. Same. Motion for time to plead. Pill of exceptions. Chancery jurisdiction.</p> <p>A defendant in assumpsit obtained leave to plead within ninety days. He failed to plead within the time allowed, and his pleas filed on the first day of the next term were stricken out, on motion of the plaintiff. The defendant then moved for leave to refile his pleas, and in support of the motion presented an affidavit of his attorney, stating that the pleas contained a good defence, and great injustice would he done if the defendant should not he permitted to plead; and stating, as an excuse for the failure to plead in time, that it was an invariable custom of many years with affiant and plaintiff’s attorney not to exact strict compliance with rules and orders as to the time of pleading, and that all either had ever required of the other was due notice of the' nature of the defence, which notice affiant had given to plaintiff’s attorney in this case long before the expiration of the ninety days, and that affiant had no intimation that such custom would he violated in this instance. The motion was overruled, and judgment rendered against the defendant, who sought redress by a hill in chancery. Held, that the defendant should have brought up his case on a bill of' exceptions to the action of the Circuit Court in overruling his motion, and upon the showing here made this court would have granted leave to plead; but that chancery has no jurisdiction of the matter.</p>