Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-14
DECISIONS OF THE SUPREME COURT.
OFFICIAL.
Opinions of the Supreme Court of the State
of Tennessee, at Jackson, April Term,


|
| Grant and others Jennings.
This was an action assumpsit founded in prom
| issory note for $3.50.
| Thedeclaration was filed at the March Term 1859
| And on the same day the declaration fled 1t
! seems, the following words appear to have been
written thereon, mely-"Defts plead non-assump
/ sit-payment--and set off" and the names of de-
PENDANTS attorneys were signed thereto underneath
! which the words Replication and issue" were
written and signed by plaintiff S attorney.
| The record shows that at the next term of the
| court to wit, July term 1859, Judgment by default
was entered up against the defendants for want of
defence TO the action, and this is the assigned
and relied for a reversal of the Judgment.
If the so called pleas in short-as they are desg
mated in modern phrase-can be recognized as of
any validity then it is clear that the Court erred
| in rendering the Judgment by default If not it is
equally clear that the error cannot be predicted of
the judgment.
The solution of this question depends upon the
provisions of the New Code. Section 2906 declares
that "a plea SHALL in all cases, contain succinct
statement of the facts relied on defence to the
acton-eXcept the plea ola general denial, provided
for by Section 1918 and by Section 1888 1t is the
duty of the Court to see that the rules of pleading
are substantially adhered to-" By Section 1882. il
is provided that if any pleading is had FOR duplicty,
unnecessary prolIx, irrelevant or frivolous, 1t may
stricken out at the cost of the party so pleading on
motion of the adverse party; or by the Court Of its
OCn motion.
the first place. that plea "in short is riUOIOus and
is to be treated nullity, and in the next place
that it is the imperative duty of the court wherever
the question shall properly ARISE to disregard such
plea and to order it to be struck out. to pro-
eeed to render judgment if no such plea had been
put in either the motion of the adverse party or
of its own motion
In this view, notwithstanding the words mon
assumpsit, payment and set-off" seem to have been
accepted by the plaintiff pleas to the action. and
the words Replication and ISSUE" even written
Hereunder we think it was altogether competent to
the court either on motion of the plaintiff of its
own mere motion, to strike out the words to dis
regard them entirely, and proceed to render judg
ment as for want of plea defence to the action,
unless the party had shown meritorious defence,
and a sufficient excuse for not having avaied him
self of it, in the proper form, and at the proper
time.
1t cannot be held, that the plaintiff is precuded
by his acceptance of such plea. from afterwards
dsregarding them, at any time. before proceeding
to trial But if the parties shall choose to go to
trial upon such issues, and the Court regardless of
the positive injunction of TIE statute shall tolerate
them in doing So we think the objection to such |
pleading could not be taken after verdict by either
party.
The result is that the judgment in the present |
case must be affirmed. MCKINNEY.
Test NJ. D. WELSH, Clerk.