Greenburg v. Massey
| Decision Date | 18 February 1907 |
| Citation | 90 Miss. 121,43 So. 1 |
| Court | Mississippi Supreme Court |
| Parties | HENRY GREENBURG v. WILLIAM MASSEY |
March 1907
FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.
Massey the appellee, was the plaintiff in the court below and Greenburg, the appellant, was defendant there. From a judgment in the court of a justice of the peace in plaintiff's favor the defendant appealed to the circuit court; and from the judgment of the circuit court in favor of plaintiff defendant appealed to the supreme court.
The plaintiff, Massey, brought suit against the defendant in the court of one Harrell, a justice of the peace, by filing an affidavit, which simply averred that defendant was justly indebted to plaintiff in the sum of $ 160.
The defendant, Greenburg, appeared in the justice's court and judgment was rendered against him for $ 135, alleged damages to a horse hired by defendant from plaintiff. The defendant appealed to the circuit court, and there demurred to plaintiff's affidavit (treating the same as a declaration), because no evidence of debt had been filed in the justice's court as required by Code 1892, § 2401, providing that anyone desiring to sue before a justice of the peace shall lodge with him the evidence of debt statement of account, or other written statement of the cause of action. The demurrer was overruled and defendant moved the court to require plaintiff to furnish a bill of particulars, but the motion was also overruled. In the circuit court, the plaintiff was permitted to prove his claim against the defendant for alleged damages to a horse defendant had hired from plaintiff and overdriven and maltreated. The jury returned a verdict in plaintiff's favor for $ 125, and judgment against defendant, based thereon, was rendered accordingly, from which the defendant appealed to the supreme court, assigning for error, among other things, the failure of the defendant to file a written statement of his cause of action as required by the statute.
Judgment reversed and cause remanded.
Quin & Williams, and F. H. Lotterhos, for appellant.
The case must be reversed, because the plaintiff did not file a written statement of his cause of action at the commencement of his suit. Code 1892, § 2401.
The mere filing of an affidavit by plaintiff that the defendant, Greenburg, was justly indebted to plaintiff, Massey, in the sum of $ 160, was insufficient.
The defendant made timely objection to the cause's proceeding further with the pleadings in such condition, by his motions before the introduction of evidence, in the circuit court.
It is true that the pleadings in the court of a justice of the peace are informal, but there must be some basis absolutely required upon which to found a suit in that court. The requirements are very simple, but they must be complied with.
On inspection of the affidavit, can one tell the nature of the demand? Is it based on contract? Or is it ex delicto? What is the nature of the demand? There must be such a written statement of a cause of action, under Code 1892, § 2401, as can be successfully pleaded as res judicata by the defendant, if sued again on the same charge or demand. Butts v. Phelps, 79 Mo. 302.
Mixon & Butler, for appellee.
No pleadings are required in the court of a justice of the peace. A statement of account by plaintiff is sufficient for the commencement of a suit. Code 1892, § 2401.
It is within the discretion of the trial court to grant or refuse bills of particulars. No effort was made by defendant to satisfy the court by affidavit or otherwise that for the purposes of his defense on the trial it was necessary that his adversary be more specific. Defendant failed to...
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