DeFord v. Furniss

Simrall, J.: Charles Stewart sued II. J. DeFord and Susan Phipps, in the circuit court of Amite county, in assumpsit; Stewart died, and there was a verdict and judgment in favor of his administrator, Thos. J. Furniss. The errors assigned here are, 1st. That there was no proper suggestion of the death of Stewart, the plaintiff, and no proper order of revivor. 2d. The jury did not find the issue joined, but gave judgment for the plaintiff. 1. The record shows that the death of the plaintiff being suggested, and the cause revived in the name of Thomas J. Furniss as administrator, etc., whereupon came the parties, and being ready for trial, etc., and submitted the case to the jury. What parties came ? Furniss, the administrator, and the defendant. If there had been any reason why Furniss should not proceed in the suit, then was the time to have made it. Parties cannot be heard to make exception in this court, to orders like this, which passed without question in the inferior court. We are bound to presume that the circuit court had sufficient evidence of Furniss’ right as administrator to prosecute the suit. Cannon, admr., v. T. T. Cooper, 39 Miss., 789. If the two facts distinctly appear, the death of the plaintiff, and the substitution of the administrator in [134] Iiis stead, as a party — however awkwardly and inartificially the entries on the record may be, we will not overlook the facts, to criticise the form. 2: The verdict of the jury is not in the usual technical form. But it has the substantial requisites. “ Being elected, tried and sworn to try the issue joined, upon their oaths, do say, we, the jury, give judgment for the plaintiff, to amount of note and interest, amounting to $1,846 25.” Upon which follows the judgment of the court. This is tantamount to declaring that they find the issue joined for the plaintiff, and assess his damages, etc. Let the judgment be Affirmed.