Davis v. Davis

Mississippi Supreme Court
Davis v. Davis, 62 Miss. 818 (Miss. 1885)
Arnold

Davis v. Davis

Opinion of the Court

Arnold, J.,

delivered the opinion of the court.

The 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.

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. 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.

And 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.

The 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.

The 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.

Reference

Full Case Name
H. L. Davis v. W. J. Davis
Cited By
4 cases
Status
Published
Syllabus
1. Chancery. Pleading and practice. Amended bill. Right of defendant to respond. If, after answer filed, a bill in chancery be amended in a material matter, the defendant should be permitted to plead, answer, or demur, not only to the amendment, but to the amended bill as if it were an original bill. 2. Same. Pleading to amended bill. Reasonable time. And if the defendant ask leave to plead to or answer such amended bill, he should be allowed a reasonable time therefor; and one hour and three-quarters is not a reasonable time for such purpose.