Wilcox v. Davis ( 1862 )

By the Court

Emmett, C. J.

This is a case, in which, after issue had been joined between the parties to this appeal, the Plaintiffs served a supplemental complaint, under the provisions of the act of February 14, 1862, entitled “ An Act suspending the privilege of all persons aiding the rebellion against the United States, of prosecuting and defending actions, and judicial proceedings in this State,” in?which it was. alleged that Davis, one of the Defendants, on the day said act was passed, was a citizen of the State of Mississippi, and that said State was then and had ever since been in rebellion against the United States; and thereupon an order was entered by the clerk staying all further proceedings by said Defendant, except such as related to the issue tendered by said supplemental complaint. To the supplemental complaint a demurrer. was interposed, but the Plaintiffs returned the copy served on them refusing to notice the demurrer further; and after the expiration of twenty days, moved the Court to grant them the relief demanded in the original complaint. The motion and demurrer were both heard at the same time. The Court overruled the demurrer, but refused to grant the motion for relief, or for' judgment; and entered an order staying all proceedings without day, unless the Plaintiffs would consent to withdraw their supplemental complaint and elect to proceed on the merits. From this order the Plaintiffs appealed to this Court.

In the opinion filed by the judge below,-he held, that although he considered the statute as valid, so far as to suspend the light to commence and prosecute actions by persons engaged in the existing rebellion, yet that the right to defend an action co-exists with the liability to be sued ; that to hold otherwise would be to turn the law into a private confiscation act for the benefit of individual Plaintiffs ; that although the Defendant may have even forfeited all his property by his treasonable conduct, yet that would give the Plaintiffs no right to his property nor to a judgment by which it might be swept away; and that it was-but a mockery of justice.to require a person, by process of the Courts, to appear and answer to a claim made against him, and then to deny him.a hearing after he has thus been brought into Court.

There would be ample grounds for the distinction in favor of Defendants,-which the learned-judge made in this case, even if the act above named were in other respects valid ; but as the case depends in other respects upon the same questions that were determined in Davis vs. Pierse et al., heard at this term, and is involved in the decision therein rendered; we can affirm the order appealed from, so far only as it denies the motion for relief, or for judgment; and must reverse it in so far as it directs a stay of proceedings — it being our intention to leave the parties in the precise condition occupied by each immediately before the supplemental complaint was interposed.