Drane v. Board of Police , 42 Miss. 264 ( 1868 )

Peyton, «T.,

delivered the opinion of the court.

The President of the Board of Police of Madison County brought an action of assumpsit in the Circuit Court of said county against the plaintiffs, in. error, to which they pleaded the general issue, and two special pleas of the Statute of Limitations.

The defendant in error demurred to the special pleas, and the demurrer was sustained by the court, and the cause proceeded to trial upon the issue joined upon the first plea, and resulted in a judgment against the plaintiffs in error. From this judgment they prosecute this writ of error, and assign for error, that upon sustaining the demurrer to the defendants’ 'special pleas to the plaintiff’s declaration the court did not render a judgment of respondeat ouster.

The statute makes it the imperative duty of the court, upon sustaining a demurrer to the defendant’s plea to the declaration, to render judgment that the defendant answer over to the declaration. Nev. Code, 495, art. 110.

It is insisted by counsel for defendant in error, that the object of the statute was simply to prevent the rendition of judgment quod recuperet without an issue to the jury or a privilege of making an issue, and cannot apply to a case where there was an issue and a trial by jury.

• This court has decided that respondeat ouster is the proper judgment on sustaining a demurrer to defendant’s plea to the declaration in cases in which the cause has been tried upon issues joined upon other pleas. This is deemed the appropriate judgment of the court in such cases, whether the defendant avails himself of it or not. Lee v. Dozier, 40 Miss. 482.

The judgmentwill.be reversed and the cause remanded, with directions to the court below to enter a judgment on the demurrer, that the defendants do answer over to the deelaration.