Bonner v. White
| Decision Date | 11 February 1901 |
| Citation | 78 Miss. 653,29 So. 402 |
| Court | Mississippi Supreme Court |
| Parties | WILLIAM BONNER v. ELIJAH A. WHITE |
October 1900
FROM the circuit court of Jones county. HON. JOHN R. ENOCHS Judge.
White the appellee, was plaintiff in the court below; Bonner, the appellant, was defendant there. The opinion fully states the case.
Affirmed.
Stone Devours, for appellant.
The court below erred in granting a peremptory instruction for the plaintiff as for want of a counter affidavit, because one was on file. It is true the counter affidavit was informal, but it was sufficient. This court has correctly never been technical when dealing with justice of the peace proceedings. Dunlop v. Clay, 65 Miss. 454; Brooks v. Snead, 50 Miss. 416; Trice v. Jones, 52 Miss. 138; Coppock v. Smith, 54 Miss. 640.
The court takes judicial notice of everything shown by the record. Secrest v. Petty, 10 Ills., 188; Pooley v. Seney, 70 Iowa 275; Dawson v. Dawson, 29 Mo. App., 521; Leonard Woodward, 34 Mich. 514.
When plaintiff had introduced his sworn account in evidence, he rested and moved the court for judgment for the want of a counter affidavit. The defendant objected, and asked to have the case submitted to the jury and to be allowed to introduce evidence. The court replied that there would be no use for evidence, as the court would have to give a peremptory instruction for the plaintiff, and, upon request of plaintiff's counsel, gave the aforesaid peremptory instruction, in pursuance of which the jury rendered the verdict.
"The statute does not alter the law of pleadings." The defendant was entitled to have the case submitted to the jury. Reinhardt v. Carter, 49 Miss. 315. Bower v. Henshaw, 53 Miss. 345.
Shannon & Street, for appellee.
The law governing this case is plainly set forth in a number of our supreme court decisions. We call the court's attention to a few of them, as follows: Reinhardt v. Carter, 49 Miss. 315; Bloom v. McGrath, 53 Miss. 249; Rose v. Watson, 54 Miss. 674, and authorities there cited; Ware v. McQuillan, 54 Miss. 703; Covel v. Smith, 68 Miss. 296. The court's attention is particularly called to the case of Rose v. Watson, supra. It is directly in point, and sustains the action of the lower court in every particular.
This is a controversy over what is the proper procedure under code § 1801, providing that an affidavit that an account sued on is "correct and due" and shall "entitle the plaintiff to judgment," unless there be a counter affidavit that it is not correct, etc., as applied to the facts of the particular case. These facts, precisely stated, are: White sued Bonner in the court of a justice of the peace on an account duly sworn to in conformity with that section. On the twenty-third of September, 1899, the case was called for trial in that court, and judgment given for Bonner, and White, the plaintiff, appealed to the circuit court. There appears among the papers a stray document in exactly these words:
"Dr.
E. A.
White.
Fer services rendered in 1898 and 1899
$ 125 00
Cash paid at Vosburg
$ 75 00
1 Check
100 00
Balance
$ 25 00
Sworn to and subscribed before me this twenty-third of September, 1899.
(Signed)
D. FERGUSON, J. P."
We assume this was designed as a set-off, though it is not Clear what it means. It does not show to whom White owed the money, nor how it is that the debit is not a total of $ 225, instead of a balance of $ 25, and it does not conform, in the affidavit, to code § 1801. Nevertheless, this document was among the papers in the cause in the circuit court, and might, we presume, have been established as a set-off there by proper evidence. But it is very clear that it was no counter affidavit, and it did not deny the correctness of the plaintiff's account.
In this situation of affairs the case was called for trial de novo on the appeal in the circuit court, and the plaintiff (White) introduced to the jury his sworn account and rested, offering no other evidence whatever, and at once moved for judgment for the amount of his demand because there was no counter affidavit on file, as, clearly, there was none. Thereupon, and before the court acted on this motion, Bonner's counsel asked if he would be allowed to introduce evidence, and the court responded that he would not be permitted to offer evidence contradicting the account sued on, and the counsel then asked if he would be permitted to go to the jury, and the court said he might go to the jury, but it would be instructed to find for the plaintiff, and, counsel saying nothing further, the court did so instruct, and the verdict and judgment were according to the instruction. Then the counsel made a motion for a new trial, on the grounds:
1. Because of sustaining the motion for a judgment "on a sworn account when a counter affidavit was on file."
2. Error in "refusing to submit the case to the jury and permit defendant to introduce witnesses."
On this motion ''the court requested defendant to make...
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