Opinion
No. 27611.
March 4, 1929.
1. JUDGMENT. Judgment by default cannot be taken while plea not a nullity remains on file undisposed of, even if it is defective.
Judgment by default or nil dicit cannot be taken against a defendant while plea remains on file undisposed of, even though defendant's pleading is filed out of time or is defective in form or substance, unless it is such that it may be treated as mere nullity.
2. PLEADING. "Null plea" is one so void of substance that it cannot be cured by amendment.
A "null plea" is one so void of substance that it cannot, within rules government amendments, be cured by amendment.
3. JUDGMENT. Where declaration in debt was filed June 12, 1926, and plea regarding bankruptcy proceedings, filed December 14, 1927, was undisposed of, plaintiff cannot take judgment by default.
Where declaration in debt was filed on June 12, 1926, and on December 14, 1927, defendants filed sworn plea to effect that they were duly adjudged bankrupts in the year 1926, and that claim was then pending in bankrupt court, and that defendants were discharged from bankrupt court, and such plea remained undisposed of, plaintiffs could not take judgment by default without disposing of plea, since defendant's plea was not a nullity.
4. APPEAL AND ERROR. Where liability was joint and several and defendant W. filed no plea and did not appeal, reversal of default judgment did not affect judgment against W.
Where defendant W. was served with process and liability charged by declaration was joint and several and W. filed no plea and had not appealed, reversal of judgment taken against defendants by default did not affect judgment so far as it concerned W.
APPEAL from circuit court of Winston county, HON. JNO. F. ALLEN, Judge.
Z.A. Brantley, for appellants.
R.W. Boydstun, for appellee.
On June 12, 1926, appellee filed its declaration in debt against appellants, and also against M.M. Wilson, in two counts, one on a promissory note, and the other on an open account. On December 14, 1927, the circuit court being then in session, appellants filed the following sworn plea: "Come the defendants, W.T. Dalton and H.L. Trest, and state to the court that they were duly adjudged bankrupts in the year 1926, and that the above styled claim is now pending in the bankrupt court at Aberdeen, Miss. And that defendants Dalton and Trest have been duly and legally discharged from said bankrupt court. And of this statement defendants stand ready to verify."
On the next day, December 15, 1927, without any steps whatever having been taken to dispose of the purported plea filed the day before, appellee took a judgment by default; the judgment containing the usual recitals of service of process, of failure to plead, that defendants have been called three times, but come not.
A judgment by default or nil dicit cannot be taken against a defendant while a plea remains on file and not disposed of. This rule applies even though defendants' pleading is filed out of time, or is defective in form or substance, unless it is such that it may be treated as a mere nullity. See 34 C.J., 169, 170, and the numerous cases cited under section 382, K (1). So far as we can find, there has been no attempt made to define precisely what is a nullity in pleading; but we think an approximate statement is that a null plea is one so void of substance that it cannot, within the rules governing amendments, be cured by amendment. Tested by this statement, the plea above set out is not a nullity, and therefore it was error to wholly disregard it, and give a judgment by default without first disposing of it.
The defendant Wilson was duly served with process. The liability charged by the declaration was joint and several as to all three of the defendants. Wilson filed no plea, and has not appealed. The reversal now ordered will therefore not affect the judgment so far as concerns the said Wilson. Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840.
Reversed and remanded as to appellants Dalton and Trest.
Reversed and remanded.