Prine v. Smith
Decision Date | 13 February 1956 |
Docket Number | No. 40125,40125 |
Citation | 85 So.2d 210,226 Miss. 701 |
Parties | W. M. PRINE, Jr. v. Lon V. SMITH. |
Court | Mississippi Supreme Court |
W. W. Dent, Collins, for appellant.
Rawls & Hathorn, Hall & Callender, Maurice Dantin, Columbia, for appellee.
This appeal is from an interlocutory order of the Chancery Court of Covington County sustaining a special demurrer to the amended bill of complaint on the ground of failure of complainant to tender the return of the purchase money of the property described in the deed of conveyance sought to be cancelled, laches and a statute of limitation.
The failure to make tender is a procedural defect, and if raised by a demurrer, must be raised by special demurrer. Griffith's Miss. Chancery Practice, 2d Ed., Section 295; Wirtz v. Gordon, 175 Miss. 726, 168 So. 74; McDonald v. Kamper, 89 Miss. 221, 224, 42 So. 877.
In Lott v. Windham, 191 Miss. 849, 4 So.2d 342, the appeal was from an order sustaining a special demurrer, and the granting of the same was held to have been improvident. Many cases are cited in the opinion in support of the Court's decision. In the course of the opinion the Court said:
In Breland v. Lemastus, 183 Miss. 150, 183 So. 500, the Court said:
In Hardy v. Candelain, 204 Miss. 328, 37 So.2d 360, 361, it was held: 'We pretermit discussion of the special demurrer, as it is procedural matter and cannot be brought before us for appellate decision on an interlocutory appeal.'
In the more recent case of Cochran v. Cochran, 221 Miss. 780, 74 So.2d 841, 842, the Court said: ...
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Berry v. Masonite Corp., No. 49687
...caution. Burns v. Arrington, 251 Miss. 247, 169 So.2d 831 (1964); Martin v. Reed, 232 Miss. 258, 98 So.2d 765 (1957); Prine v. Smith, 226 Miss. 701, 85 So.2d 210 (1956); Stirling v. Whitney National Bank, 170 Miss. 674, 150 So. 654 All the controlling principles cannot be settled on this ap......