The weekly Panola star. [volume] (Panola, Miss.) 1857-1881, 1866-06-02

Grunra tfna, lsGG
\ Hewitt ys q. 4. Cobb a Co.
frror 10 the Circuit Court of Adams
rounty
~ tnE curRr DELIVERED
ny itbuE ELLErf.
The plaintiff In error was sued rs
The maker Of pfomlssory note, and
did not plead to the action. Never.
thclcss the record states that Jury
was cmpancllcd and sworn "io Try
the issue joined, and that verdict
was found aud Judgment entered
upon II, ~ " an issuc had been
joined between the parties. This
Is the error complained Of, and Il IL
insisted that q Judgment final by
default should have been taken, and |
that II was erroneous 10 submit the |
case to the jury under the circum.
stances. This precise question has
been several times before this Court,
and has not always received the same
consideration. In the cases Of VIII
kinson VS.. Patterson 0, Howard 1893,
and Harrison VS., Agricultural Bank,
|. Smedes d NJ. 307, il was held to
be erroneous to empancl a jury to
pass upon an issue, when in fact there
was no issue 10 be determined. The
judgments were therefore reversed,
and this Court proceeding to do what
the Court below ought to have done,
entered up final judgments by default
against the plaintiffs in error. In
McAdams VS.. Massie, |, Sme,lcs d
NJ. $50, the Judgment was reversed
for the same error, but the cause was
remanded for further proceedings in
the Court below. In the latter case
of Garnet VS.. Felt and Reed, 80
Miss. 1877, involving the same point,
the Court arrived at different con-
clusion-one which, upon further, re-
Election we are satisfied is correct, and
to which we are disposed to adhere.
Our statute requires regular jurors
to be sworn to try all issues, and to
execute all writs Of inquiry that may
be submitted to them during the
term, (Rev. Code, sol, Art. 49, aud
they are never specially sworn in any
particular civil case. Tails jurors
are sworn in the same form for the
day. No matter, therefore, what may
be the nature Of the case submitted
to them, whether il be the trial Of
an issue on the execution of a writ Of
inquiry il must be certain that the
jury have been properly sworn.
There is no possibility of error in
this respect, il the jury are sworn at
all. When, therefore, the recital in
the record purports that the jury
were sworn to try an issue, when the
case was the execution of a writ.oi
inquiry, or vice versa, il is clear that
the entry is a mere clerical one, and
cannot be true in point of fact.
II, indeed, any injury could result
to the party By such clerical mis-
prison, he would be entitled to relief
But il is a settled principle in all
appellate tribunals, that no judgment
will be recovered for any irregularity
or error that does not actually preju.
dice the party complaining Of it. IL
the class Of cases under discussion
there is no possibility of prejudice Il
the defendant. The plaintiffs in thu
present case were entitled TO a jndg
ment final by default on the SAM
day, for the very same amount, ant
having the same operation and etiec
as the judgment actually given. Th'
! only difference Is, that in one cas-
the interest should have been calcu
{ lated by the clerk, and in the othe
: by the jury, and the entry woul'
E have been slightly different in form
, And IL we were TO reverse the judg
! ment for the irregularity compliance
{ Of, il would only be TO enter the sam
: judgment here which ought, tcchniC
D ally to have been entered below, an
/. the same precisely in substance an
o effect with the Judgment that wa
J actually rendered.
r. The whole spirit Of modern juri'
i prudence is directed to prevent sui
y stantial Justice from being defeatc
: by an adherence TO mere techuic'
form. Our code Is full Of provision
> designed to relieve the proceeding
r in our courts Of justice from the rul
,f bish that, for centuries, on both sid
d Of the Atlantic, had been accum'
lating upon them. The liberal e.
he pansion of the principle Of d
IN statutes Of jeofails and it, applicati'
ID in criminal as well as civil cas'
ne form an important part Of the il
~ provement Of the law in this rs.pe'
Our belief that this tendency both
is the Legislation aud Of judicial dec
at ions, l. wise aud wholesome, rend,
r. us les reluctant to depart from cot
as Of the earlier rulings uf this Cou
We and incllnes Us more strongly to
". tablish the principles announced
Il, is late decisions.
he The judgment Ia ibis case VII
re affirmed.
~ A. -. l. A.