Gardner v. Duncan

Smith, C. J., delivered the opinion of the court. “"When a defendant in equity sutlers a decree to be taken against him upon a pro confesso order, he cannot, in the appellate court, take advantage of the statute of limitations, although it appear upon the face of the bill that the time prescribed by the statute as a bar had [500] elapsed. The statute may he waived, and a party will he held to have waived it in equity, unless he shows an intention to rely upon it, by plea, answer, or demurrer.” John Patterson v. Ingraham & Reed, 23 Miss. 87; Archer v. Jones, 26 Miss 583; Shoults v. Kemp, 57 Miss 218; Lewis v. Buckley, 73 Miss. 60, 19 South. 197; Anderson v. McNeal, 82 Miss. 542, 34 South. 1. The case of Jones v. Rogers, 85 Miss. 805, 38 South. 742, relied upon by appellant, was one in which the bar of the statute was interposed by way of demurrer, and therefore has no application here, for the reason that “there is no analogy between a pro confesso and a demurrer. By the latter, the party asserts and insists upon all his legal rights; the former more nearly resembles an answer, admitting all the charges of the bill, and claiming no defense.” Patterson v. Ingraham, supra. It is immaterial, therefore, whether the allegations of appellee’s bill of complaint bring her cause of action within or without the statute of limitations. The court below properly included in its decree an order that a writ of assistance issue in event appellant failed to deliver possession of the land to appellee within thirty days, and it is immaterial that the bill contained specifically no prayer therefor. Such a writ is equivalent to the writ of habere facias possessionem at law, and issues as of course without notice, so far as the parties to the record are concerned, when necessary to put into execution a decree of the character here under consideration. The decree in this cause settled appellee’s right to the possession of the land; and, should appellant refuse to deliver it to her, the writ would issue as of course, without notice to him, upon application being made therefor. This being true, no good could have been accomplished by postponing the award of the writ until after delivery of possession had been refused. Harney v. Morton, 39 Miss. 508; Griswold v. Simmons, 50 Miss. 123; Jones v. Hooper, 50 Miss. 510; Sichler v. Look, 93 Cal. 600, 29 Pac. 220; Bird v. Belz, 33 Kan. 391. 6 Pac. 627. [501] There is no merit in any of appellant’s contentions, and therefore the decree of the court below is affirmed. Affirmed.