State v. Morgan ( 1881 )

Cooper, J.,

delivered the opinion of the court.

The appellants were not entitled to a judgment against those of the'defendants who had confessed a demurrer to their plea, and who, pleading over, interposed pleas to which demurrers were sustained. The statute applies only in those cases in which a prior demurrer having been sustained by the court, the defendant, under a judgment of respondeat ouster, pleads another plea or pleas to which a demurrer is sustained by the court. Ogden v. Glidewell, 5 How. 179; Brown v. Smith, 5 How. 387.

The motion by the plaintiff for judgment against the defendants for mispleading was properly overruled. The Code of 1871, § 597 (Code of 1880, § 1548), after enumerating a number of pleas in bar which may be pleaded together as of course when appropriate to the action, without leave of the court, provides, “ and if any defendant, or other party, shall, without leave of the court, plead several pleas, replications, or other pleadings together, except in cases where the same is allowed by law, the opposite party shall be entitled to judgment, as for want of the proper pleading; but such judgment may be set aside, on affidavit of merits, and payment of costs, and such other terms as the court may think fit.” The plaintiff might have moved to strike from the files the plea of non assumpsit, because the same was not appropriate to an action on a bond ; or, if it had stood alone, they might have treated it as a nullity, and taken judgment as for want of any plea to the action. The object of the statute was not to prevent informal or defective pleading; advantage of such error is to be taken by demurrer, or by motion to strike the plea from the file, or by treating the plea as a nullity and proceeding to judgment as if no plea was interposed.

At common law the office of the pleadings was to produce a definite, short, and single issue, upon which the decision of the cause should be determined. The defendant who had more than one ground of defence might elect which one of them he desmed, but, having chosen his ground, he was required to adhere to it, and risk the success of his defence upon that single issue. To mitigate the rigor of the common law, it was provided by the statute of 4 & 5 Anne, c. 16, § 4, that the defendant or tenant in any action or suit, or plaintiff in replevin, in any court of record, may, with the leave of the same court, “ plead as many several matters thereto as he shall 'think necessary for his defence.” At first the courts limited the beneficial operation of the statute by refusing to permit the defendant to plead inconsistent or contradictory pleas, but subsequently, under a more liberal construction, a broader practice prevailed. 1 Tidd’s Practice, 655.

In the earliest history of our legislation we find a statute on the same subject, which is broader than the statute of Anne. “ The defendant in any cause may plead as many several matters as he may judge necessary to his defence, provided he be not admitted to plead and demur to the whole, and provided also, that no plea of non est factum shall be admitted to be pleaded but when accompanied with an affidavit of its truth.” Statutes of Mississippi Territory (Toulmiu, 1807), p. 118, § 33. This statute was carried forward into all the codes subsequently adopted, until the Code of 1857, in which we find for the first time, the provision now under consideration. Revised Code of Mississippi (Poindexter, 1824) p. 116, § 49; Hutch. Code, p. 846, § 1; How. & Hutch. Code, p. 589, § 1.

In the case of Williams v. Harris, 2 How. 627 (decided in 1887), this court, following the construction which the English courts had given to the statute of Anne, held that inconsistent or incompatible pleas could not be pleaded together. In Rowland v. Dalton, §6 Miss. 702, it was decided that under that section of the pleading act of 1850, which declared that “ the defendant may set forth by answer as many defences as he shall have,” inconsistent defences might be interposed together. But this decision was made after the adoption of the Code of 1857. From the year 1807, then, to the passage of the Act of 1850, while a defendant might plead at the same time as many defences as he had, it was necessary that the defences pleaded should not be inconsistent with each other, and the Act of 1850, which was in substance identical with the provisions of the preceding codes, had not at the time of the adoption of the Code of 1857, been construed as permitting inconsistent pleas to be pleaded together.

An examination of the list of pleas, specifically designated in the Code, which may be pleaded together, shows that most of them are those which at some time had been held to be inconsistent, either with the general issue or with each other, and the evident purpose of the act was to permit the interposition of pleas, which at least were considered by the codifiers and the legislature as not then permitted to be pleaded together, for by the letter of the section the defendant is permitted to plead, when appropriate to the action, the pleas specifically named, and “ other pleading where the same is allowed by law.” Before the enactment of this provision, “ by law ” the defendant might plead as many consistent matters as he might deem necessary for his defence. By this section he was given the right to plead inconsistent matters, which before he either could not, or, in the opinion of the legislature could not, do.

Whether those enumerated are intended to be all the inconsistent pleas which may be pleaded together, or are merely illustrations of their various classes, it is not now necessary to decide, for those interposed by the defendants were not inconsistent, and it is therefore sufficient now- to decide that the statute does not preclude a defendant from joining with those therein named any other pleas which before its enactment he might have pleaded.

The evidence of the proceedings before the board of supervisors was rightly admitted by the court. The failure of the officer to execute the bond, as required by the board, was not only cause of forfeiture of his office, but ipso facto vacated it, and the sureties were not bound by his subsequent default. Bennett v. State, 58 Miss. 556. The evidence of the proceedings in the action of quo warranto was unnecessarily introduced by the sureties, but no injury resulted from its introduction to the plaintiff. Judgment affirmed.