Phillips v. Cooper

Citations

• 50 Miss. 722

Syllabus

<p>1. Pleadings — Defects Therein — Waiver Thereof. — A party going to trial without objecting to a defect in the pleadings cannot be heard to complain for the first time in the appellate court. Ample power is given by the statute to amend or correct any defect in the pleadings.</p> <p>2. Evidence — Record — General Rule. — The general rule is, that a record must be established by the highest attainable evidence. This rule is relaxed in most cases, so that proof may be made by copy. Records are allowed to be shown by the admissions of parties under certain circumstances, but with hesitation and caution.</p> <p>3. Same — Same — Admissions. — Admissions of parties are admissible where there is not, in the judgment of the law, higher and better evidence in existence to be produced. A record cannot be proven by secondary or parol evidence, unless its loss or destruction be shown.</p> <p>4. Same — Affidavit and Bond. —The recitals of an affidavit and bond do not assert the existence of valid judgments. They merely assert that the executions on their face purport to be issued on certain judgments. These recitals are not admissions made in open court, nor are they solemn admissions made in the course of judicial proceedings, and hence are not admissible to prove a record.</p>