Summers v. Foote

Mr. Justice Fisher delivered the opinion of the court. This was an action in the circuit court of Pike county, founded upon a bond executed by one Jonas Parker, as principal, and the plaintiff in error as surety, payable to Joseph W. Matthews, as governor of the State, and to his successors in office. Parker had undertaken, in virtue of a contract entered into with the board of police of Pike county, to construct and keep in repair a certain bridge for the period of five years. The object of the bond was, to bind the undertaker in a certain penalty, under certain conditions, and with security, to perform and carry out the terms of this contract. The suit was brought in the name of Governor Foote, as successor of Governor Matthews. Parker, the principal, appeared and demurred to the declaration; the other defendant not appearing, a judgment by default, with a writ of inquiry, was taken against him. After this judgment, the plaintiff amended his declaration, or complaint, by inserting the board of police of said county as usees in the action. After this amendment, the plaintiff in error applied for leave to demur to the complaint, which was refused by the court. The action was thereupon discontinued as to Par674 leer, the principal, and the writ of inquiry executed as to the plaintiff in error. Whenever a plaintiff finds it necessary to amend his pleadings after a judgment by default and writ of inquiry to enable him to recover, he thereby gives the other party a right to plead, as he could have done in the first instance, to the action. The very defect in the plaintiff’s pleadings, may have been the cause of the defendant’s supposing a defence unnecessary, as without the amendment there may have been no cause of action shown against the party. We are therefore of opinion, that the court erred in refusing to permit the defendant to demur to the complaint as amended. We may further remark on the case, that it is covered, as to the other points, by the case of Tucker, Gov., &c., v. Hart et al., 23 Miss. R. 548. The bond, not having been taken as required by the statute, could not be sued on in the name of Governor Matthews’ successor. Judgment reversed, and cause remanded, with leave to plaintiff in error to demur to the complaint.