Kain v. May , 13 Miss. 368 ( 1845 )

Mr. Justice Thachee

delivered the opinion of the court.

Writ of error to Amite county circuit court.

At the return term of the writ in this case, a judgment of nonsuit was allowed against the plaintiffs below for having failed to reply to sundry special pleas.

The rule governing pleadings is established by statute in this state, by the act regulating “ the practice of the circuit courts,” 1840, chap. 74. At the return term of the action, all pleadings or defences, not requiring the action of a jury to decide them, must be disposed of by the court at that term. At the succeeding term, all issues to the country must be tried, disposed of, or continued ; but if, at that term, the pleadings are discovered to be defective, or the issues tendered and accepted, immaterial, it is the duty of the judge holding the court, to require and cause the pleadings to be amended and perfected instanter, to the end that the merits of the controversy may be fairly submitted to a jury. A judgment of nonsuit for a failure to file replications to special pleas based upon matter involving the merits of the controversy between the parties upon matters of fact for a jury, cannot legally be allowed at the return term of the writ in any case, but it is the duty of the court to require the proceedings, at the trial term, to be perfected instanter, and in default thereof, then to give such judgment as the case may require.

The judgment of the court below is reversed, the cause remanded for further proceedings, with directions to the circuit court to require the pleadings to be perfected instanter, and in default to give judgment of nonsuit.