Hartford Fire Insurance v. Green

CAMPBELL, J., delivered the opinion of the court. This is an action by defendants in error against plaintiff in error, on a policy of insurance issued by plaintiff in error in favor of defendants in error, on their stock of goods of different kinds, contained in a certain building in the city of Vicksburg, which were afterwards, and during the continuance of the policy, destroyed by fire. The trial resulted in a verdict and judgment for plaintiffs below, and defendant below prosecuted this writ of error, and assigns ten distinct grounds of error, which will be disposed of seriatim. The first is the refusal of the circuit court to remove the cause to the United States circuit court on the application of defendant below, which is a corporation created by aud existing under the laws of Connecticut. This application was based on the act of Congress of 2d March, 1867, on the subject of the removal of causes in certain cases from the state courts, aud is fatally defective in not showing that the controversy is “ between a citizen of the state in which the suit is brought (Mississippi) and a citizen of another state.” While it does appear that “the Hartford Fire Insurance Company” is a ■citizen of Connecticut, it nowhere in the record appears that [338] tbe plaintiffs below were “citizens” of Mississippi. There was no error in refusing to remove the cause to the United States court. The second error assigned is the refusal of the circuit court to continue the case on the application presented. Not being-able to say that there was an abuse of the discretion possessed by the circuit court in this respect, we decline to sustain this assignment. The next is the refusal of the court to sustain the motion of defendant below to strike out the two replications to its 4th plea. Defendant had pleaded six pleas. Plaintiffs, without leave of the court or judge, and without an affidavit, as required by § 608, Code of 1871, filed three replications to the 4th plea, and defendant moved to strike the two additional replications out, because the plea was answered by the first of the three, and the two additional replications were “pleaded improperly and without authoi-hy.” This motion was denied, with leave to defendant to answer over, and defendant then demurred to the two replications spoken of, and, the demurrer being overruled, issue of fact was taken on said replications. Section 597, Code of 1871, declares “if any defendant or other party shall, without leave of the court, plead several pleas, replications, or other pleadings, together, except in eases where the same is allowed by law, the opposite party shall be entitled to judgment as for want of the proper pleading; but such judgment may be set aside on affidavit of merits and payment of costs, and such other terms as the court may think fit.” The pleading of the three replications in this case was directly in the face of the statute, and defendant was entitled to judgment of nonpros, against plaintiffs below. It was also proper to move to strike out the two unauthorized replications. This was the course in England, and has been sanctioned by this court. 1 Tidd’s Prac., 567 ; ib., 658 ; 1 Ch. Pl., 563; Hunter v. Wilkinson, 44 Miss., 721. The motion to strike out should have been sustained, but by reason of its denial defendant below was put to a demurrer, and finally to an issue [339] of fact, on eacli of the two unauthorized replications. A judgment of non pros., to which defendant below was entitled because of the unauthorized replications, is a final judgment, on which costs are taxable. It is true that § 597, supra, gives the court power to set aside the judgment in such case, on affidavit of merits and payment of costs, and such other terms as the court may think-fit, but this court has held, and correctly we think, that the court has no power to dispense with the affidavit required as the condition of leave to file several replications, or to mitigate the terms of pleading doubly, as fixed by statute. Hunter v. Wilkinson, 44 Miss., 721. It is urged in behalf of defendant in error that the issues made by the two additional replications spoken of were immaterial, and did no harm to defendant below, as they were not in fact tried, and that no instruction was given to the jury in reference to them, and they might as well have been out of the record. If we could pronounce this true, as a fact shown by the record, we are not prepared to say it would cure the error of disregarding the positive statute cited-above. We perceive no way of redressing the wrong done defendant, in allowing replications not allowed by law, except by reversing the judgment rendered in the cause in which such error is committed. But in this case evidence was admitted, against the objection of defendant below, on the trial under the issues joined on the 2d and 3d replications to the 4th plea, and, although all of the issues joined between the parties were found for plaintiffs below, it is impossible for us to say how far such evidence contributed to carry the verdict against defendant below, which was a general verdict for plaintiffs. The 4th and 5th assignments of error consist severally of objections made by defendant below to evidence offered by plaintiffs, pertinent to the issues joined on the 2d and 3d replications to the 4th plea; and, as we hold the refusal to strike out those replications, on motion, to be error, that disposes of these two grounds of error. .If the replications were [340] unwarranted and illegal, everything based on them partakes of their infirmity. The 6th ground of error assigned is the admission by the court, against objection of defendant below, of the depositions .of parties to the suit, taken before the adoption of the Code of 1871, which does not prohibit such depositions, as did the Code of 1857. The trial occurred after 1871. These depositions had been on file for a good while, and no exception in writing had been filed, as required bjr § 799 of the Code, nor .other objection signified before the trial. It is claimed that this was a waiver of objection to the depositions. The section .just cited from the Code does not require objections for “ incompetency or irrelevancjr ” to be made before trial. It relates only to the talcing of depositions, and leaves all questions of competency and relevancy to be settled as they arise during the trial. The point of the objection made to these depositions, when offered, is the “incompetency of the said (Messrs. Green) to testify in this suit by deposition,” and no specific objection was made to their depositions because they were taken before the Code of 1871. If such specific objection ha'd been made, non constat but that it might have been obviated. It is not true, as a legal proposition, that the plaintiffs below were incompetent to testify by deposition in this suit. It was admissible, after the Code of 1871, to take their depositions for use in this suit, and the specific objection made to the reading of their depositions did not go to the precise point of ■opposition which might have been urged to the depositions — i. e., that they were taken at a time Avhen it was not competent to use, on trial, the deposition of parties to the suit. A party will be held, in this court, to the precise ground of objection made in the court below to the admission of depositions. This objection was not well taken, and this ground of error fails. The 7th ground of error assigned is the giving of instructions for plaintiffs. Not having all the evidence in the record, it cannot be said whether the instructions are correct [341] or not. It cannot be said of them that in no state of case could they be^roper, and not being informed what this case was, on all the evidence, the judgment cannot be disturbed on this ground. The same may be said.as to the modification of the instructions asked by defendant, and this disposes of the 8th assignment. The 9th error assigned is the overruling the motion for new trial made by defendant below. This motion was based on the grounds covered by previous assignments of errors, and because the jury found contrary to the evidence, which we •cannot sustain, because the record does not purport to contain .all the evidence. The other grounds of the motion have been noticed before. The 10th ground of error assigned is that certain pleas of defendant were not replied to, or otherwise disposed of. This •objection is met and disposed of by § 622 of Code of 1871; Insurance Co. v. Jones, 49 Miss., 80. For the error of the circuit court in not sustaining the motion of defendant below to strike out the 2d and 3d replications to the 4th plea, the judgment is reversed and the verdict set aside, and the cause remanded, with instructions to' "the circuit court to grant the motion to strike out said replications, and otherwise to proceed in said case according to law and as indicated by this opinion. Simrall, C. J., takes no part, having been connected with "the case in the court below.