Pool v. Hill

Citations

• 44 Miss. 306

Syllabus

<p>1. Pbactice. — where the maker of á promissory note and the endorsers thoreon have been sued jointly, and it does not appear by the record that the maker is a resident of this state, it is not error to discontinue or to dismiss as to him, and procee d against the others. It is otherwise where the record shows him to be a resident.</p> <p>2. Pleadings — Pbactice.—Pleas must be filed on or before the third day of the return term, or within such other time as the court, by rule or otherwise, shall allow; and issues of fact shall be joined, ready for trial at the nestlsucceeding term. Bey. Code, 503, art. 150. The “ otherwise” contemplated by “ rule of court or otherwise” does not extend beyond the term.</p> <p>3. Saute. — Pleadings are equally defective whether pleaded improperly in point of time or in point of law, and a motion to strike out, where they are filed out of the usual course of practice, is the proper mode of displacing them from the suit. Pleas entirely destitute of merit may be strickon out on motion.</p> <p>i. Leave oe coubt — Pbactice.—Where leave of the court is necessary to authorize the filing of a plea, the record should show the order granting it; the recital of the fact in the bod y of the plea amounts- to no more than an averment of the pleader. A motion to displace a plea made in due time presents the same question as if an application were made to file it.</p> <p>5. Plea puis dabien continuance — Pbactice.—A plea puis darien continuance avering that defendant had notified the plaintiff in writing, to sue the principal in the note, within the time prescribed by law, and that he had not done so, is a nullity if it appears that such notice was given within thirty days before the commencement of the next term thereafter, and may be stricken out on motion. And where the plea was not put in the proper time, or was not properly verified, the objection must be taken by motion and not by demurrer.</p>