McNeely v. Y. & M. V. R. R. Co.

• Decision Date: 02 June 1919
• Docket Number: 20689
• Citation: 81 So. 641,119 Miss. 897
• Parties: MCNEELY v. Y. & M. V. R. R. Co
• Court: Mississippi Supreme Court

81 So. 641

119 Miss. 897

MCNEELY v. Y. & M. V. R. R. Co

No. 20689

Supreme Court of Mississippi

June 2, 1919

Division B

1 PLEADING. Plea in abatement. Adverse holding. Effect.

Where a plaintiff takes issue on a plea in abatement and it is found in his favor, the judgment is quod recuperet.

2 SAME.

Where an issue of fact joined on a plea of abatement is found in favor of the plaintiff, the effect of it is an admission of the merits of the plaintiff's claim, and the judgment is final in favor of plaintiff, and the jury which determined the issue should determine the plaintiff's damages.

3 SAME.

A party having his plea in abatement passed upon by a jury and found against him, is not permitted to set up the same matter in bar, and again to go to the jury upon it.

4 PLEADING. Plea in abatement. Plea to merits.

Not withstanding sections 740 and 741, Code 1906 (Sections 523 and 524, Hemingway's Code, permit the defendant to file several pleas in bar at the same time and to the same declaration, still a plea in abatement and a plea in bar cannot be pleaded together in the same case, and when the defendant obtained leave of court to file a plea in abatement after having filed a plea in bar, this in legal effect, withdrew its plea in bar, and when the issue was joined and the issue determined on the plea in abatement the defendant's right to contest and demand of the plaintiffs so far as the right was concerned, ceased, except as to the question of the amount fo damages.

HON. R. E. JACKSON, Judge.

APPEAL from the circuit court of Wilkinson county, HON. R. E. JACKSON, Judge.

Suit by Clarence McNeely against the Yazoo & Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause remanded.

Bramlette & Bramlette, for appellant.

The eminent trial judge erred in the trial of this case in not permitting appellant to have judgment quod recuperet and in not sustaining appellant's motion for judgment quod recuperet and for an award of a writ of inquiry to assess damages against appellee in favor of appellant after the jury had rendered a verdict in favor of appellant on the issue of fact raised by appellee's plea in abatement and appellant's replication thereto.

Appellee raised and created this issue of fact by its plea in abatement and demanded that it be tried by a jury in its effort to put appellant out of court and to have his case dismissed. That is what appellee would have done to appellant had appellee succeeded in getting the verdict on the plea in abatement, but since appellant succeeded in getting the verdict on the plea in abatement--why, that changed matters entirely. That trait of human nature so strikingly exemplified in Aesop's fable of the lawyer and the farmer and the bull and the ox is again to be recognized here.

A leading case on this question and one that has been cited and approved throughout the country was decided by this court being, Kendrick v. Watkins, 54 Miss. 495. In that case this court definitely and decisively settled this question, to quote from page 497, last paragraph: "When a defendant interposes a plea in abatement, the plaintiff must demur or reply. If he demurs, and his demurrer is sustained, judgment of respondent ouster is entered and the defendant may then plead to the merits. If the plaintiff takes, issue on the plea in abatement, and it is found in his favor he has judgment quod recuperet, because the defendant, having pleaded in abatement an issuable fact which has been found against him must take the consequences. But where the plea in abatement is sustained, whether on a question of law or fact, the judgment must always be that the writ be quashed and the suit abated, because it has been improperly brought. 1 Tidd's Pract, 640-642."

There seems to be no question about the correctness of the position taken by this court in the case cited, to quote 1 Encyclopedia of Pleading and Practice 31: "Judgment for plaintiff on issues of fact. Where an issue of fact joined on a plea of abatement is found in favor of the plaintiff, the effect of it is an admission of the merits of the plaintiff's claim, and the judgment is final in favor of the plaintiff, and the jury which determines the issue should determine the plaintiff's damages."

Other states are in accord with Mississippi on this question to quote from the case of Boston Glass Manufactory v. Langdon, 24 Pick. (Mass.) 49, 35 Am. Dec. 292, in which case the plaintiff was given a peremptory instruction on the trial of the issue raised by the plea in abatement filed by defendant: "Whether the plea conclude in abatement or bar, the issue being found against the defendant, the judgment must be peremptory. The established rule, is that in dilatory pleas, when the issue is found against the defendant on matters of fact, the judgment must be in chief; Gould's pl. 300; Howe's Pr. 215."

The last paragraph of this opinion follows: "The damages were properly assessed by the jury. The defendant having elected to try her case upon a plea in abatement, must submit to the legal consequences of that form of trial. Perhaps the court might have assessed the damages as in case of default. But most obviously the better course was to submit the subject to a jury. In doing this defendant could not be allowed to go into the whole defense as upon the general issue. The rule adopted at the trial was the correct one." Brown v. Illinois Central Mut. Ins. Co. 42 Ill. 366.

Again on the question of residence raised by a plea in abatement, in the case of Vanderburg v. Clark, 22 Vt. 185, the court held: "Where a defendant, sued in the county court of Rutland, pleaded in abatement that she was not a resident of the county of Rutland, but was a resident of Woodstock in the county of Windson, and on issue thereon joined the court found the fact that defendant was not a resident of Rutland, but did not find where she resided, and rendered judgment for defendant that the writ abate held, on appeal that this was error, as defendant had not proved the substantial allegations in the plea, and that judgment should have been rendered for the plaintiff in chief for the relief asked in the complaint." See also Good v. Lehan, 8 Cush. 302; Lewis v. State, 65 Miss. 468; Henry v. Hoover, 6 Sm. & M. (Miss.) 417-519; Walker v. Walker, 6 Howard (Miss.) 500-512; 1 Amer. & Eng. Encyc., 11; National Acc. Co. v. Spiro, 78 F. 774, 24 C. C. A. 334.

Where an issue of fact is joined on a replication to a plea in abatement, and such issue is found for the plaintiff the jury should assess the damages. Italian-Swiss Agricultural Colony v. Pease, 96 Ill.App. 45; Judgment affirmed, 194 Ill. 98, 62 N.E. 317; Paris, 104 and 105, Stephen on Pleading (Troubat's).

We therefore, ask this court for judgment quod recuperet and to remand this case for trial to ascertain the amount of damages appellant is to recover from appellee.

W. F. Tucker, for appellee.

General Order No. 18, issued April 9, 1918, by W. G. McAdoo director General of Railroads, and amendments to same, is as follows: "It is therefore ordered; that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resides or in the county or district where the cause of action arose."

General Order No. 18, issued April 9, 1918, is hereby amended to read as follows: "It is therefore ordered; that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resides at the time of the accrual of the cause of action or in the county or district where the cause of action arose."

The appellant in his brief only argues two of his assignments of errors and we will confine our argument to those two. Judgment quod recuperet. After the court below had overruled appellee's motion to dismiss the case for want of venue, because the declaration alleged that the "plaintiff's place of residence is now, and always has been in the county of Wilkinson, state of Mississippi," appellee requested leave to file plea in abatement which leave was granted in order overruling the motion to dismiss for want of venue; and the plea in abatement was filed traversing the allegation as to the residence of the appellant; issue was then joined on the fact only of the residence of the appellant at the time of the accrual of the cause of action. The appellant then filed a so called replication to the plea in abatement, setting out affirmatively irrelevant matters as to when and how many times he had visited Woodville; when and where he had registered for army service; where he had filled out his questionnaire; where he expected to entrain for the the army; where he belonged to the Woodmen of the World, and how it would save appellee time and money to try the cause in Wilkinson County. All good reading before a jury, but a nullity as a replication or answer to the plea in abatement and the joining of the issue. This replication was a nullity and was so treated by the court, as the issue as to residence at the time of the accrual of the cause of action had been joined on the declaration and the plea in abatement.

The directed verdict of the jury as to the residence of the appellant settled nothing, except that the appellant resided in the town of Woodville, Wilkinson county, Mississippi, when the cause of action accrued. We believe that the jury should have passed upon the question of residence and should have decided whether the appellant resided in Woodville when he had been in the continual employment of the appellee in the state of Louisiana for two years, but the court below in its discretion forced appellee to the jury on...