Dean v. McKinstry , 10 Miss. 213 ( 1844 )

Mr. Justice ThacheR

delivered the opinion of the court.

This case comes up, by writ of error from Holmes county.

McKinstry instituted this action, for the use of the Rank of Lexington, against John Dean, William Frayser, and William A. Land, the acceptors of a bill of exchange. The writ was served upon Frayser and Land, and'returned non est inventus, as to Dean. Land plead in abatement, that plaintiff’s attorney was one of the directors of the bank for whose use the suit was brought, at the time suit was instituted, and was, therefore, under the statute, incapacitated from acting as its attorney to that end. This plea was unanswered. Land also plead non assumpsit, upon which issue was taken by plaintiff. The death of Frayser was suggested, and the suit abated, as to him. No plea was filed by Dean, but the record has these words, “ Also came the other defendants by attorney, and issue being joined, &c.” There was a jury, and verdict for plaintiff, and judgment entered up jointly, against Land and Dean.

One error assigned is, that judgment was taken against Land, while one of his pleas stood without reply. It is error, to enter a judgment in the face of an unanswered plea, if such plea requires an answer. But the statute permitting a defendant to “plead as many several matters, either of law or fact, as he may judge necessary to his defence,” is not intended to repeal the common law order and grade of pleas. It was not designed to admit the introduction indiscriminately, in the same action, of inconsistent pleas. The number of pleas, of a similar nature, is unlimited; but the ancient rules of pleading still remain unchanged. The plea of non assumpsit rendered any answer to the plea in abatement unnecessary. We do not consider that the act, in relation to pleas in abatement, of 1838, bears upon this case.

The second objection, that no service of writ or appearance for Dean existing, the judgment was therefore irregular, is well taken. It was decided, in the case of Pittman and Gwin v. The Planters Bank, 1 How. 527, that the recital in the record, “ also came the other defendants, by attorney,” &c., is not sufficient to'amount to'the appearance of a party not served with process.

The judgment of the court below must be reversed, and the cause remanded for further proceedings.