Lay v. Filmore , 75 Miss. 493 ( 1897 )

Woods, C. J.,

delivered the opinion of the court.

The declaration was in assumpsit on a due bill for $219.85.

The defendants pleaded as follows: (1) The general issue; (2) payment; (3) payment and release; (4) want of consideration; (5) denial of interest in the instrument sued on in the plaintiff, and that the amount due had been paid to the real owner of the debt, and (6) notice of set-off.

On motion of plaintiff, all these pleas were stricken out by the court, because inconsistent and contradictory, and judgment rendered for plaintiff. This judgment was set aside on affidavit of merits, and defendants allowed to plead over. The defendants then filed two pleas — the general issue and payment — and gave notice of set-off. To the plea of payment, plaintiff replied, and the case went to the jury. On the pleadings as thus framed, much, indeed the most, of defendant’s evidence was excluded, and an easy victory had by plaintiff, and the defendants appeal.

Under our statutes and decisions, inconsistent pleas may be filed together, and, under section 683, code of 1892, the pleas stricken out are specifically allowed to be filed together. The action of the court in striking out defendants’ pleas was error, and for this we reverse the judgment.

We deem it unnecessary to pass upon the other errors as signed, inasmuch as the rulings on the evidence resulted necessarily from the erroneous action of the court in striking out the pleas. The court was consistent in the rulings complained of, and simply followed out the erroneous action in striking out the defendant’s pleas.

Reversed and remcmded.