Thornton v. West Feliciana Railroad

Mr. Chief Justice HaNdy delivered the opinion of the court. This was an action founded upon a promissory note in the circuit court of Wilkinson county. [145] The questions presented arise under two bills of exception in the record; one taken to a point ruled by the court during the progress of the trial, and the other taken to the action of the court in overruling a motion for a new trial. The point raised by the first bill of exceptions is, whether the plaintiff or the defendant had the right to open and conclude in adducing the evidence and in the argument of the cause ; and this depends upon the pleadings. At the time of trial the case stood upon the defendant’s plea, that the cause of action did not accrue within, six years next before the commencement of the action, and the replication of the plaintiff, that at the time when the cause of action accrued, the defendant was beyond the limits of this State, and that the action was brought within six years after his return to the State, concluding with a verification. It is manifest,- under this state of the pleadings, that the affirmative of the issue was upon the plaintiff. The replication sgt up new matter in avoidance of the bar of the statute, namely, the defendant’s absence from the State at the time of accrual of the cause of action, and the bringing of the action within such time after his return as to remove the bar of the statute. This was the issue made, and it was incumbent on the plaintiff to show the state of facts alleged by him, otherwise the bar must have operated and the action failed. It is evident, therefore, that the affirmative of the issue was with him, and that' he was entitled to the opening and conclusion. The second bill of exceptions was taken upon the overruling the motion for a new trial; and a preliminary objection precludes all consideration of the matters presented in it! It appears by the record that two new trials had been granted in the case, at the instance of the defendant, and that the motion to the overruling which this exception was taken, was the third application made by him for a new trial. Under the rule established upon this subject, it was competent for the defendant to take his bill of exceptions at the time, to any decision of the court made during the trial, set out the evidence and every thing that was necessary- to the reservation and full presentation of the point of decision and incorporate it in the146 record ; and upon such bill of exceptions take his writ of error and have the decision examined in this court. But the statute prohibits the granting of more than two new trials in the same case and at the instance of the same party, and of course precludes the party from availing himself of a bill of exceptions taken upon motion for a new trial overruled, as a means of reversing points alleged to have been .erroneously decided at the trial. For in such case the exception is taken to the overruling the motion for a new trial, and if the action of the court upon that motion was proper under the injunction of the statute,-it cannot be rendered erroneous because some of the rulings therein recited may be erroneous. Ray v. McCary, 26 Miss. 404. The judgment is, therefore, affirmed.'