Cummings v. Daughety
Mississippi Supreme Court
From the circuit court of Oktibbeha county. Hon. Newnan Cayoe, Judge. This was an action by the appellants to recover usurious interest paid to appellee on certain debts for borrowed money, a forfeiture of all the interest paid, amounting to over $700, being insisted upon in the declaration.
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From the circuit court of Oktibbeha county. Hon. Newnan Cayoe, Judge. This was an action by the appellants to recover usurious interest paid to appellee on certain debts for borrowed money, a forfeiture of all the interest paid, amounting to over $700, being insisted upon in the declaration. The defendant demurred to the declaration, assigning, along with other grounds of demurrer, that, on the averments of the declaration, the plaintiff was not entitled to recover the excess of interest paid over six per cent. The demurrer was sustained in so far as the claim set up in the declaration…
1Opinion of the CourtCooper, C. J.
The demurrer was to the whole, but some of the causes assigned related to only a part of the declaration. The court overruled it, except as to the grounds going only to a part of the declaration, as to which it was sustained. A demurrer is an entire thing, and must be overruled or sustained, and if it is not a full defense to the whole declaration or count to which it is applied, it should be overruled. Chitty on Pleadings, 66é.
As a demurrer to the whole declaration it is bad, for on the facts stated the plaintiff was entitled to some recovery.
The judgment is reversed and cause remanded.
2Cited by4 opinions
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- Boler v. MosbyMississippi Supreme Court · 1977
- Gully v. Board of Sup'rsMississippi Supreme Court · 1933
- Jacobs v. Postal Telegraph Cable Co.Mississippi Supreme Court · 1898