Aaron v. Podesta
Aaron v. Podesta
Opinion of the Court
delivered the opinion of the court.
Sect. 1627 of the Code of 1880 gave to open accounts sued on, when supported by the oath of the .plaintiff attached thereto and filed with the account, a conclusive effect as testimony, unless the defendant should controvert their correctness by his oath as therein provided. This is, however, a rule •of evidence, and not one of pleading or practice, and the de
In Reinhardt v. Carter et al., 49 Miss. 315, itwas held,under a statute substantially similar to this, that the defendant was entitled to have his case submitted to a jury, though the only plea interposed to an action on a sworn account was that of non assumpsit. The case now under consideration was commenced before a justice of the peace, and neither before the justice nor in the Circuit Court on appeal, was the defendant required to plead in writing. He demanded that the case should be submitted to a jury for decision as he had the right to have done, and we must presume this was for the purpose of making some defence to the suit; in any event it was a-question of fact which was to be decided, and questions of fact are to be determined bjr the jury and not by the court, however strong may be the evidence by which the issue on the-part of one or the other of the litigants is supported.
The judgment is reversed.
Reference
- Full Case Name
- Wolf Aaron v. Joseph Podesta
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- I. Peactice. Account sworn to. No denial by affidavit. Sect. 1627, Code 1S80, construed. Sect. 1627 of tlie Code of 1880 provides that in any action upon an open account, to which is attached the affidavit of the plaintiff that the account is correct and due by the defendants, the plaintiff shall be entitled “to judgment at the trial term, unless the defendant shall make affidavit, and file with his plea, that the account is not correct, particularizing wherein it is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment for such part of said account as the defendant, by his affidavit, shall not deny to be true.” P. brought an action before a justice of the peace, upon an open account sworn to as provided in this statute, and obtained judgment by default against the defendant. But the latter appealed to the Circuit Court, and there the plaintiff moved for judgment, on the ground that the defendant had not filed any affidavit denying the correctness of the account, or any part thereof. The defendant opposed the motion, and asked to have the case submitted to a jury for a trial; but the motion was granted and judgment rendered for the plaintiff. Held, that the defendant was not precluded by the statute from interposing, as a defence to the action, affirmative matter in confession and avoidance; and as he demanded that the case be submitted to a jury for trial, it must be presumed that it was for the purpose of making some permissible defence. 2. Same. Judgment under seat. 1627, Code 1880. Rule of evidence. The rule which entitles a plaintiff to a judgment under the provisions of sect. 1627 of the Code of 1880 is a rule of evidence, and not one of pleading or practice.