Boswell v. Tunnell

GOLDTHWAITE, J. We think this plea well pleaded. It avers the identity of the parties — of the cause of action— that judgment was given against the defendant — and that this judgment was appealed to the county court, where it was pending at the return of the writ. It would be a strained .conclusion, that the a ppeal was not pending, when the assertion is, the judgment .was obtained the 2d of June, and [959] only five clays are allowed to take the appeal. The writ issued on the 11th and consequently must have been after the appeal was taken. But independent of this construction of the plea, as it stands, there Avould be no reason why the defendant should not have pleaded a former recovery, if the facts are as the plaintiffs suppose them. The plea being well pleaded, there was error in sustaining the demurrer. Judgment reversed and cause remanded.