Robinson v. Francis's Administrator , 8 Miss. 458 ( 1843 )

Mr. Justice Clayton

stated the base, and delivered the opinion of the court.

The first cause of error assigned is, that the defendant ought not to have been forced into trial at the term at which it took place. A sufficient answer to this is, that it does not appear that a continuance was asked for. But it is said it was erroneous to force the defendant to trial, because he was entitled to one term after the answer filed to take testimony to disprove it. The party'who files a bill of discovery, always admits that he cannot prove the facts except by the answer of his adversary; and that answer is conclusive upon him. He is not permitted to contradict it.

The next error assigned is, that the defendant was taken by surprise in consequence of the finding of the answer. It had been on file nearly three months; and if in that time the defendant had not discovered it, its production cannot be regarded as operating that sort of surprise which is ground for a new trial.

Another cause assigned is, that the court refused to give the charge which was asked of it, and the case of Taylor v. Matchell, 1 Howard, 596, is relied on in proof of the error. In that case the court says: “that the material allegations in a bill, which are neither admitted nor denied by the answer, are to be taken as true;” and that the charge of the court below to that effect was correct. But in this case the answer denies all the material allegations of the bill, and the court was in substance asked to take the answer off the file, or to direct the jury to disregard it, because the counsel had not sooner discovered it. We are not aware of any rule of law which would have justified the court in such a course.

The only remaining cause is, that the court erred in permitting the plaintiff to withdraw the demurrer after the cause had been submitted to the jury. There is some confusion in the different parts of the bill of exceptions, so that it may be a little uncertain whether the demurrer was withdrawn before or after the cause was submitted to the jury. In the part of the exceptions quoted, it is distinctly stated that it took place before the submission. This too would be the regular course of proceeding, as all demurrers, especially of that kind, should be disposed of before the cause is put to the jury. Unless it should very clearly appear that a different course was pursued, this court could not reverse, because all presumptions are to be made in favor of the regularity of the proceedings in the court below. But eveu if it appeared the demurrer was withdrawn whilst the case was before the jury, it would not be ground for reversal. Where there is an answer on the file, as well as a demurrer, the answer overrules the demurrer. Mitford’s Pl. 209. The court could not, therefore, when the two were before it, do otherwise than disregard the demurrer.

We do not think there is any error in the proceedings of the court below, and therefore direct the judgment to be affirmed.

Judgment affirmed.