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64 Miss. 830

Noble v. Terrell

Mississippi Supreme Court

Decided April 15, 1887

Mississippi Supreme Court · decided 1887-04-15

HoN. J. H. WyNN, Judge. Terrell & Bond had sawed and delivered to W. H. Noble a certain quantity of lumber, for which he owed them on May 29, 1883, seven hundred and thirty-eight dollars and twenty-seven cents. They filed a petition in which they alleged that the most of the lumber referred to had been used in the construction of certain described houses, upon which they claimed a statutory lien.

Key passage — most relied on by later courts

“If it was not allowable, under the statute, to join with the petition to enforce the lien for a certain sum, a count in assumpsit for a certain other sum for which no lien was claimed, for lumber alleged to have been furnished under the same contract between the parties, the error of doing so is cured by the statute of jeofails * * *.”

quoted by 1 later decision, including 226 So. 2d 616 - Evans v. Central Service & Supply Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1887-04-15

How this case has been cited

Cited by 3 later decisions — most recently June 1969

3 state decisions

10188718901900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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ARNOLD, J.,

¶1delivered the opinion of the court.

¶2Under the statute there was no error in permitting the petition to be amended; but if it was not allowable, under the statute, to join with the petition to enforce the lien for a certain sum, a count in assumpsit for a certain other sum for which no lien was claimed, for lumber alleged to have been furnished under the same contract between the parties, the error of doing so is cured by the statute of jeofails, which provides, among other things, that no judgment shall be stayed or reversed, after verdict, for any mis-pleading or insufficient pleading, or for any mistake or misconception as to the form of action. As we construe the record, no objection was made to the form of the petition or complaint before trial, and none can be made on such account after verdict. The statute intends that the pleadings shall be settled by appropriate method before trial, and if it is not done, neither party, after verdict, shall avail of a defect in the pleadings, such as a misjoinder of causes of action, or a mistake in the form of action.

¶3On the issues joined, there was no error in giving and refusing instructions, and on the showing made, there was no error in refusing to grant a continuance, or new trial. Affirmed.

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