Shields v. Taylor

Citations

• 21 Miss. 127

Syllabus

<p>To an action on a bill of exchange, the defendant plead that he had been sued by the plaintiff in the circuit court of the United States in the same cause of action, and obtained a judgment in his favor, by which he was discharged from all liability on the demand sued on : Held, on demurrer to the plea, that it was,a good bar to the action.</p> <p>Since the act of 1840, regulating the practice in the circuit courts, amendments which were formerly in the discretion of the court, are now matters of duty ; and it will be error to refuse to allow them, when applied for at the proper time.</p> <p>Judgments on demurrers are under the statute,. (How & Hutch. Dig. 619, § 9,) not final until the end of the term, until which time they may, on proper showing, be set aside.</p> <p>To an action on a bill of exchange, the defendant plead a former recovery in his behalf, in an action on the same bill in another court; the plaintiff demurred ; and the plea was adjudged good, and judgment entered for defendant ; two days afterwards the plaintiff entered a motion to set the judgment aside, and for leave to reply to the plea; the motion was continued to the next term, when the plaintiff’s counsel read a transcript of the record of the former judgment with his affidavit, that he did not consider it a bar to the action ; the court refused to set the judgment on the demurrer aside, and the plaintiff excepted ; held, that the plaintiff should have been allowed to reply to the plea, and it was error to refuse it.</p> <p>Lang v. Fatheree, 7 S. & M. 404', explained; the proper judgment when a demurrer is overruled is final, unless the demurrant crave leave to reply, in which case leave should be given.</p>