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28 Miss. 671

Summers v. Foote

Mississippi Supreme Court

Decided April 15, 1855

Mississippi Supreme Court · decided 1855-04-15

IN error from the circuit court of Pike county; Hon. John Watts, judge. This suit was commenced on the 7th day of October, 1853, of Pike circuit court, in the name of “ Henry Stuart Foote, governor of the State of Mississippi, and successor in office of Joseph W. Matthews, late governor of said State,” to whom the bond sued on was made payable, against a certain Jonas S. Parker, principal, and the plaintiff in error as security.

Good law ✅— No negative treatment on recordhow we know

Decided 1855-04-15

How this case has been cited

Cited by 3 later decisions — most recently January 1886

3 state decisions

101855186018701880decided

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Mr. Justice Fisher

¶1delivered the opinion of the court.

¶2This 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.

¶3Parker 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 Par-*674leer, the principal, and the writ of inquiry executed as to the plaintiff in error.

¶4Whenever 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.

¶5We 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.

¶6Judgment reversed, and cause remanded, with leave to plaintiff in error to demur to the complaint.

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