Scharff v. Lisso

Cooper, C. J., delivered the opinion of the court. From the argument of counsel, both for the appellant and appellee, and from the fact that prominence is given in the bill of exceptions to the fact that plaintiff did not apply for leave to [216] amend his replication until after a demurrer thereto had been filed, we infer that the court declined to permit the amendment of the replication to be made, on the ground that the court had no power to permit such an amendment to be made at that stage of the pleading. The appellee relies upon the cases of Ross et al. v. Sims, 27 Miss. 359, and M. & C. R. R. Co. v. Orr, 52 Miss. 542, to support the proposition that on sustaining a demurrer to a replication the judgment should be final and not respondeat ouster. These cases do decide this, but they do not decide that upon application leave to further reply may not be given. In the early case of Bailey v. Gaskins, 6 Howard 519, there had been three pleas interposed, on one of which the plaintiff took issue and demurred to the others; the record did not show what disposition had been made of the demurrers, but there was a general judgment for the plaintiff. On appeal the court held that the pleas demurred to contained valid defenses and directed a judgment to be entered in this court overruling the demurrers and of nil oapiat; thereupon the plaintiff moved the court to reverse the judgment only in order that he might in the court below- ask and obtain leave to withdraw his demurrers and reply. This the court refused to do, the court saying: “ If this be done it must be done for the pufpose of allowing the party the privilege of asking the leave of the court to withdraw his demurrer; and- this is a privilege'which, he might or might not ask, and when asked it is one which the court might or might not allow according to its discretion.” In Gwin v. McCarroll, 1 S. & M. 351, the court said, in referring to the case of Bailey v. Gaskins, “That decision was made upon the common-law rule without reference to our statutes. We are now satisfied it is not the law.” Speaking of our statute of amendments the court said, after noting decisions of other courts upon similar laws: “ Our own act is not less liberal than any other, and it directs that courts of law shall have full power and authority to order and allow amendments to be made in all proceedings whatsoever before verdict, so as to bring the merits of the question between the parties fairly to trial. Indeed, its end and object seems [217] to be to prevent decisions upon technical grounds, instead of the merits upon a fair submission to the jury.” The court then reversed the judgment, overruled a demurrer to a rejoinder, and remanded the cause to the court below that the plaintiff might obtain leave to withdraw it and sur-rejoin. In Ross v. Sims, 27 Miss., and R. R. Co. v. Orr, 52 Miss., the court only decided that judgment final and not respondeat ouster was the proper judgment to be entered on sustaining a demurrer to a replication; in neither of the cases was there an application for leave to amend, and it has never, so far as we know, been held that such leave cannot be given under our statutes allowing all amendments to be made to bring the merits of the controversy in issue. The demurrer to the replication was rightly sustained. The statute of limitations of the' lex fori and not that of the lex loci contractus must govern. If, as the replication suggests, the intention of the pleader was to insist that the defendant cannot invoke the benefit of our statute because his place of business was in another State, it could avail him nothing, since, if the defendant has been a resident of this State more than six years immediately before the institution of this suit, he cannot be debarred of his defense merely because he had a place of business in another State. If, in fact, the defendant has not resided in this State, that of itself is a sufficient replication, since by § 2157 of the Code of 1871 the statute only began to run in his favor after he came into the State. But if such be the facts, it is wholly immaterial whether or not the statute of limitations of Louisiana has or has not run in his favor, unless the statute of that State bars the right as well as the remedy. For the error in refusing the plaintiff to withdraw his replication and to reply anew the Judgment is reversed and cause remanded.