State v. Rials , 1 Miss. Dec. 302 ( 1885 )

Opinion.

Arnold, J.,

delivered the opinion of the court:

This was a suit against Dials and his sureties on a retail liquor bond. The breach of the bond, alleged in the declaration, was that Dials had sold and given away vinous and spirituous liquors to a certain minor contrary to law. At the term of the court to which the writ was made returnable, the death of Rials was sug- . gested and the cause continued with leave to revive in the name of his personal representative when known. At the next term of the court, the sureties on the bond filed two pleas, and a motion was made to strike them out and for judgment for the plaintiffs on the ground that the pleas were filed out of time and that the second plea was frivolous. The motion was sustained as to the . second plea, but overruled as to the first, and at the same term the cause was tried and resulted in a judgment for the defendants and the plaintiffs appealed.

The errors insisted on here are that the court erred in refusing to sustain the motion to strike out the pleas and in overruling the motion for a new trial. The statute requires that the defendant shall plead on or before the second day of the return term, and ■ that issue of fact shall be made up and joined at that term and ready for trial at the next succeeding term, but a large discretion is vested in the circuit judge in the matter. McAdory v. Turner, 50 Miss. 666; Pfeifer v. Chamberlain, 52 Miss. 89.

As the cause was tried at the second term of the court after suit brought but not until more than two weeks after the pleas were filed, and not until several days after the motion to strike out the pleas was overruled, and as the court, after the motion to strike out was disposed of, offered to continue the cause, if plaintiffs desired to do so, it does not appear how the plaintiffs were prejudiced by the action of the court or that there was any abuse of discretion in the action of the court. There is no error in the record.

Affirmed.