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62 Miss. 818

Davis v. Davis

Mississippi Supreme Court

Decided April 15, 1885

Mississippi Supreme Court · decided 1885-04-15

Hon. Watcken Cowan, Chancellor. After the bill of complaint herein had been answered and depositions *had been taken by both parties, the complainant, ~W. J. Davis, by leave of the court amended his bill in a material matter.

Cited by 3 later decisions — most recently March 1907

2 federal appellate · 1 state decisions

Key passage — most relied on by later courts

““When the complainant amends his hill in a material matter, as was done in this case, the defendant may plead, answer, or demur to the same as if it were an original hill, no matter what may have heen the state of the pleadings before the amendment was made. 1 Daniell, Ch. Pl. & Prac. (5th Ed.) p. 409; 1 Barb. Ch. Prac. p. 224; Bancroft v. Wardour, 2 Brown. Ch. 66; Bosanquet v. Marsham, 4 Sim. 573; Cresy v. Bevan, 13 Sim. 354; Dillon v. Davis, 3 Tenn. Ch. 386. The authorities generally concur in the declaration that any amendment of a bill after answer authorizes the defendant, though not required to answer, to put in an answer making an entire new defense, and contradicting his original answer, if he desires to do so. Id., and Insurance Co. v. Jenkins, 8 Paige, 589; Richardson v. Richardson, 5 Paige, 58; Miller v. Whittaker, 33 Ill. 387 .””

quoted by 1 later decision, including Nelson v. Eaton

Relies on Taylor v. Beck

Good law ✅— No negative treatment on recordhow we know

Decided 1885-04-15

View the full empirical analysis of this case →

Arnold, J.,

¶1delivered the opinion of the court.

¶2The court erred in restricting the right of the appellant to plead, answer, or demur to only a part of the amended bill and in refusing to allow him reasonable time to plead or answer to the amended bill. When the complainant amends- his bill in a material matter, as was done in this case, the defendant may plead, answer, or demur to the same as if it were an original bill, no matter what may have been the state of the pleadings before the amendment was made. 1 Dan. Ch. PL and Pr. (fifth ed.) 409; 1 Barb. Ch. Pr. 224 ; Bancroft v. Wardour, 2 Bro. C. C. 66; Bosanquet v. Marsham, 4 Sim. 573; Cresy v. Beavan, 13 Sim. 354; Dillon v. Davis, 3 Tenn. Ch. 386.

¶3The authorities generally concur in the declaration that any amendment of a bill after answer authorizes the defendant, though not required to answer,, to put in an answer, making an entire new defense and contradicting his original answer, if he desires to do so. 1 Barb. Ch. Pr. 224; 1 Dan. Ch. Pl. and Pr. 409; The Trust and Tire Ins. Co. v. Jenkins et al., 8 Paige 589 ; Richardson v. Richardson, 5 Paige 58; Dillon v. Davis, 3 Tenn. Ch. 386; Miller v. Whittaker., 13 Ill. 386.

¶4And the code provides that, when a bill is amended after answer *821filed and an answer is necessary, the defendant shall be allowed twenty days after notice of the amendment to answer, etc. Code, § 1883.

¶5The action of the Chancellor was not in accordance with any or either of these rules and deprived the appellant of a substantial right to which he was entitled under the law.

¶6The decree is reversed and the cause remanded, with leave to appellant to plead, answer, or demur to the amended hill within thirty days from the date of the filing of the mandate of this court in the cause in the lower 'court.

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