Franklin County MsArchives Court.....Butler, Vs. Stephens 1834
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 8:22 pm

Source: Reports Of Cases - Mississippi
Written: 1834

June Term 1826.

D. S. BUTLER vs. JOEL STEPHENS.

A verdict without judgment will not sustain the plea of former recovery.

OPINION OF THE COURT — By the Hon. EDWARD TURNER.

This cause was tried at the last term of the Franklin Circuit Court. It is an 
action on the case for work and labor, and other promises. The defendant 
pleaded non assumpsit — payment and set off — on which issues to the country 
were joined, at April term 1825 — at the last March term, the defendant filed 
the plea of former recovery for the same cause of action. The plaintiff 
replied, nul tiel record, and thereupon issue was joined. The cause was tried 
on the two first pleas before the jury, and verdict obtained in favor of the 
plaintiff for $660 83, of which the plaintiff released $131 63 and prayed 
judgment for the balance; and on the issue of nul tiel record, to the plea of 
former recovery, the court doubting, as to the law and rule of decision, 
referred the said plea &c. to this court for decision.

It appears by the report of the judge, before whom the cause was tried, and by 
the record, that on a certain day in the same term, previous to the trial of 
this cause, the case relied on in this plea had been tried, and a verdict of a 
jury rendered for the plaintiff, on the agreement to arbitrate, set forth in 
the plea,that the term not being ended, that no formal judgment had been 
prayed for or entered, and that all was in paper, except the proceedings of 
the court, the verdict, &c. and whether those proceedings can be considered as 
a recovery and judgment, and if they are, then whether they are for the same 
cause of action, as mentioned in the plaintiff's declaration, are the 
questions reserved and referred for decision to the supreme court.

To constitute an available defence under the plea of former recovery, it is 
requisite that the defendant shall show a judgment of the court, as stated in 
the plea. In this case, no such judgment, either tacit, express, or implied, 
has been shown. According to the practice which has prevailed in this state, 
in cases tried by jury, if no proceedings are had, to stay or arrest the 
judgment, during the term at which such verdict is rendered, there is an 
implied judgment, on the rising of the court, and the record is made up 
accordingly. In other cases, as on the plea of nul tiel record, demurrer, &c. 
the judgment may be expressly given — and in another class under the 67th sec. 
of the circuit court law, Rev. code 120, the judgment is considered final, on 
the last day of the term, without any act of the court, ordering or signing 
judgement. In other cases, such as the present, if the party who obtains the 
verdict of the jury in his favor, desires the judgment of the court thereon, 
previous to the rising of the court, such party may move the court for 
judgment and it may be granted, unless cause be shown to the contrary.

As to the subject matter of the supposed recovery pleaded in bar in this case, 
the court expresses no opinion. It is not fairly before us. It might have been 
brought before the court below, on a plea in abatement of the pendency of the 
suit, &c. or the defendant may possibly avail himself of this defence in some 
other mode. All we feel that we are called on by law to determine on the case 
as referred to us, is that the replication to the plea of former recovery be 
sustained, and judgment be rendered in favor of the plaintiff.

Judges Child and Black concurred.

Additional Comments:
Reports of Cases Adjudged in the Supreme Court of Mississippi; 1818 - 1832; 
By R. J. Walker, Reporter of the State. Natchez: Printed at the Courier and 
Journal Office, 1834.

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