Hall v. Stokely

• Decision Date: 03 March 1930
• Docket Number: 28425
• Citation: 126 So. 475,156 Miss. 673
• Court: Mississippi Supreme Court
• Parties: HALL v. STOKELY et al

126 So. 475

156 Miss. 673

HALL v. STOKELY et al

No. 28425

Supreme Court of Mississippi

March 3, 1930

Division B

1 PLEADING. Matter of allowing amendment to pleadings is largely within sound judicial discretion of trial judge.

Matter of allowing amendment to pleadings as necessary in order to bring causes to trial on their merits is one which is largely within sound judicial discretion of trial judge, though it is only in exceptional cases that a trial court ought to refuse amendments.

2 PLEADING. Amendment in accordance with request to strike one count of amended declaration after demurrer was sustained thereto should have been allowed.

Where plaintiff filing amended declaration in two counts stating cause of action ex delicto and of distinct cause ex contractu after demurrer was sustained thereto asked leave to strike second count and be allowed to proceed on the first count as if on a second amended declaration, the amendment should have been allowed, in that no delay or other legal harm would result thereby to defendant.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district HON. W. H. POTTER, Judge.

Action by Lester Hall, by next friend, against Ella R. R. Stokely and others. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

H. L. Austin, R. A. Darden and J. A. Teat, all of Jackson, for appellant.

The primary purpose of the courts is to administer justice between the parties upon the merits of their controversy and having that definite purpose in mind, courts should allow such amendments to the pleadings, either for the plaintiff or defendant, as would bring the merits of the controversy between the parties fairly to trial.

Section 572, Hemingway's Code of 1927; Kelly v. Continental Casualty Co., 40 So. 1, 87 Miss. 438; Grace v. Floyd, 61 So. 694, 104 Miss. 613; Miller v. Northern Bank, 34 Miss. 412; Greenwood Grocery Company v. Bennett, 101 Miss. 573, 58, So. 482; Bishop v. Fennerty, 46 Miss. 570; United Fuel & Gas Company v. City of Ironton, 107 O. St. --, 140 N.E. 884, 29 A.L.R. 342; McCullar v. Mink, 83 So. 907; Eckles v. Taylor, 96 So. 682; Am. Ry. Ex. Co. v. Roby, 91 So. 449; Harper v. Adams, 106 So. 354; Sam v. Allen, 120 So. 569; 21 R. C. L., p. 572, sec. 127.

Green, Green & Potter, of Jackson, for appellees.

The plaintiff can only file one amended declaration after the demurrer to his original declaration has been sustained, and if he then files a demurrable declaration, he cannot plead further. The plaintiff can be given by statutory law no advantage whatsoever over the defendant.

Sections 552 and 553, Hemingway's Code of 1927; Y. & M. V. R. R. Co. v. Wallace, 90 Miss. 609.

It was the rule at common law that the plaintiff could not file, in any event, more than two demurrable declarations, and if two demurrable declarations were filed and demurrer sustained thereto, that he could not get judicial relief by filing a third amendment.

Lowry v. Inman, 6 Abbott's Practice (N.S.) 394, page 403.

OPINION

Griffith, J.

Appellant's original declaration was challenged by a demurrer on the ground that it joined in one count two essentially inconsistent causes of action--the case falling squarely within Railroad Co. v. Abrams, 84 Miss. 456, 36 So. 542. The demurrer was sustained, and under leave to amend appellant filed his amended declaration in two counts, one of the counts being of a cause of action ex delicto and the other of a distinct cause ex contractu, this falling within Hazlehurst v. Cumberland Co., 83 Miss. 303, 35 So. 951. A demurrer to this amended declaration having been interposed and sustained, appellant asked leave to strike his second or ex contractu count, and to be allowed to proceed on the first count as if a...