Yazoo & M. V. R. Co. v. McNeely
| Decision Date | 23 February 1920 |
| Docket Number | 21101 |
| Parties | YAZOO & M. V. R. CO. v. MCNEELY |
| Court | Mississippi Supreme Court |
APPEAL AND ERROR. Questions arising on trial of plea in abatement are reviewable on appeal from final judgment.
Questions arising on the trial of the issue raised by plea in abatement are reviewable on appeal from final judgment on the merits since an appeal from a final judgment for plaintiff brings up either the entire record in the case or so much thereof as is necessary for the decision of all questions relating thereto that are open for review by the appellate court.
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 plaintiff, defendant appeals.
The facts are fully stated in the opinion of the court.
Suggestion of error overruled.
W. F. Tucker, Chas. N. Burch and H. D. Minor, for appellant.
D. C. Bramlett, Jr., for appellee.
IN BANC
The appellee instituted this action to recover from the appellant damages alleged to have been sustained by him because of the appellant's negligence. A plea is abatement was interposed by the appellant, and a trial on the issue thereby raised resulted in a judgment for the appellee. The cause proceeded to a trial on the merits, resulting in a judgment exonerating the appellant, from which an appeal to this court was taken and the judgment of the court below was reversed and the cause remanded (McNeely v. Y. & M. V. R. R. Co., 119 Miss. 897, 81 So. 641.); the ground of the reversal being that the judgment rendered in favor of a plaintiff on a plea in abatement should be quod recuperet. The cause was then remanded solely for the purpose of fixing the amount of the then appellant's damages.
The present appellant then appealed from the judgment on the issue raised by the plea in abatement, which appeal was dismissed by this court without an opinion (82 So. 338). The present appeal is from a judgment fixing the amount of the appellee's damages, and the appeal bond recites that the appeal is prayed both from the judgment on the issue raised by the plea in abatement as well as from the final judgment fixing the amount of the appellee's damages.
The cause now comes on to be heard on a motion filed by the appellee to dismiss the appeal; two of the...
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