is entitled to judgment. In the opinion it is said that a certain plea in that case was not responsive to any fact alleged in the declaration, but was immaterial and frivolous; that, whether it was true or false, it did not affect the rights of either party; that when a plea of this character presents no point, either in bar or abatement of the suit, the plaintiff may treat it as a nullity, and sign judgment as for want of a plea. We think the principles of this decision must control in determining whether the filing a motion to dismiss will prevent the entry of a default for want of a plea at the expiration of the time for pleading. If the motion be of such a character that the plaintiff will be justified in treating it as a nullity, he may disregard it, and cause the clerk to enter the default; but if the motion be not of that character, no default can be entered until it is disposed of. The motion filed in this case, which it is claimed operated to prevent the entry of the default, was a motion to dismiss the suit upon grounds having no relevancy to such a motion under the facts of this case. The sheriff's return upon the summons showed service upon the defendant Jennings, which gave the court jurisdiction over his person, and the cause of action sued upon consisted of two promissory notes for an amount within the jurisdiction of the court. Upon the face of the proceedings, then, the court had full and complete jurisdiction, so far as Jennings was concerned. If facts existed which would show that the court did not have jurisdiction over him, they are not alleged in the motion, nor could they be properly presented by an unverified motion to dismiss, but only by motion to quash the service, or by other appropriate proceedings. It appearing upon the record that the court did have jurisdiction as to Jennings, a joint motion in behalf of himself and Dudley would not lie to dismiss the suit as to both, even though the court had not acquired jurisdiction over Dudley. But, aside from this, it is too plain to admit of argument to the contrary that a suit, over the subject-matter of which the court has jurisdiction, cannot be dismissed upon motion of defendants, part of who served and part not served with process, filed in the cause on the return day of the original process, where the law, as in this case, allows the issuance and service of alias process as to those defendants not served. Such a motion is entirely inappropriate, and presents no material matter for determination, and may be disregarded and treated as a nullity by the plaintiff. The other three grounds of the motion asserted matters which,

are

to be available, must have been pleaded. They relate to the personal privilege accorded to defendants of being sued in a particular county. There was nothing upon the recordi tending to show that defendants were entitled to the privilege of being sued in another county; and if facts justifying the privilege existed, they were the proper subject-matter for a plea, and not for an unverified motion, such as was filed in this case. All of the grounds of the motion were inappropriate and irrelevant to a motion to dismiss under the circumstances of this case; and as the motion presented nothing material for adjudication, plaintiff had a right to treat it as a nullity, and to cause the clerk to enter a default for want of a plea or demurrer.

III. Dudley had not been served with process, but the motion to dismiss filed in his behalf amounted to a general appearance on his part. In Oppenheimer v. Guckenheimer, 34 Fla. 13, 15 South. 670, it is said that, where a defendant appears specially for the purpose of presenting the question of the jurisdiction of the court over his person, he must restrict his motion to the ground of such jurisdiction, and must not include therein some other ground that recognizes the jurisdiction of the court over his person and amounts to an appearance in the cause by him; and we may now add that if he does so the motion will be held to be a general appearance, notwithstanding the fact that it is made in pursuance of a special appearance. Handy v. Insurance Co., 37 Ohio St. 366; Elliott v. Lawhead, 43 Ohio St. 171, 1 N. E. 577; Burdette v. Corgan, 26 Kan. 102; Bucklin v. Strickler, 32 Neb. 602, 49 N. W. 371. The last three grounds of the motion filed in this case relate to the personal privilege of being sued in a particular county accorded by statute to defendants in certain cases, and recognize the jurisdiction of the court over the persons of the defendants. The motion, therefore, amounts to a general appearance on behalf of Dudley as well as Jennings.

IV. There is no error in the order refusing to permit the motion to vacate the default to be amended so as to ask that the default be opened for the purpose of permitting defendant Jennings to plead. This motion was made more than 60 days after the entry of the default, and under the statute (Rev. St. § 1034) such motion, to be available, must ba made within 60 days after such entry. Burrows v. Mickler, 22 Fla. 577, 1 Am. St. Rep. 217; Einstein v. Davidson, 35 Fla. 342, 17 South. 563.

The judgment of the circuit court will be affirmed.

An

RECOVERY AT LAW.

unsettled partnership indebtedness cannot be adjudicated in an action at law.

Appeal from circuit court, Noxubee county; G. Q. Hall, Judge.

Action by John M. White against F. A. Evans. From a judgment for plaintiff, defendant appeals. Reversed.

The evidence in the record shows that appellant (the defendant in the court below) was a resident of Mobile, Ala., and was in the year 1900 engaged in the business of buying cattle and other live stock in different parts of Mississippi, and shipping them to Mobile and other markets, where they were sold; that he entered into an agreement or partnership with appellee (the plaintiff below), by which agreement appellee was to buy live stock and ship them to appellant at Mobile, and appellant was to sell them, and divide the net profits with appellee; that this agreement, after considerable dealings between the parties, was abandoned, and that an accounting had never been had between them, each claiming that the other was indebted to him in the sum of several hundred dollars; that appellant, after the abandonment of the agreement with appellee, entered into a contract to buy cattle for one J. D. Neely, and had purchased a car load, and was about to ship them, when appellee (the plaintiff below) sued out a writ of attachment, and the car load of cattle were levied upon. The affidavit in attachment set out, among other grounds, that appellant was a nonresident. A declaration was also filed against defendant, alleging an indebtedness of $851.09. Defendant filed a plea in abatement in the attachment suit, in which he acknowledged that he was a nonresident, but denied that he was indebted to plaintiff. On the trial on the attachment issue, plaintiff introduced in evidence an account which had been sworn to and filed with the declaration, to which defendant, after obtaining leave of court, filed a counterclaim, after which plaintiff rested his case, and, defendant's motion to exclude the evidence having been overruled, he introduced evidence to show nonexistence of any debt to plaintiff. After all the evidence on both sides was introduced, defendant moved to exclude the entire evidence, on the grounds that no debt had been proven, and that the controversy between the parties consisted of a series of partnership transactions, resting in a chaotic state, which could not be adjudicated by a court of law. This motion was overruled, and a peremptory instruction was given in favor of plaintiff on the attachment issue, and judgment was entered accordingly. A trial on the merits was then had, and evidence was in

31 So. 53

troduced on this issue by both sides, and a verdict and judgment were had in favor of plaintiff, and defendant appeals.

Rives & Brooks, for appellant. Bell & Daniel and Norment & Daniel, for appellee.

TERRAL, J. The evidence in this case tended strongly to show that the indebtedness of Evans to White, if there is any, arises out of partnership dealings between them, which has not been adjusted; and yet an instruction on the part of defendant below to place this question before the jury for its decision was refused. In this action we think the court erred. The evidence contained in the first volume of the record on the trial of what was intended as the attachment issue points to only one conclusion, and that is that the subject of contention between the parties was that of unsettled partnership dealings. If the second volume upon the issue of indebtedness does not entirely harmonize with the first volume, it certainly in a large measure supports the contention that the dealings between White and Evans related to unsettled partnership transactions. That such indebtedness cannot be adjudicated by a court of law is supported by Ivy v. Walker, 58 Miss. 253, 259. Reversed and remanded.

TERRAL, J. This was a suit by appellees against appellants upon a promissory note for $1,000. The note was executed as a basis for future dealings, and upon the faith of it advances were made by appellees to W. G. Huff, by paying sundry drafts made by Huff; and Huff made sundry payments by way of several shipments of cotton to the appellees. A peremptory instruction was given for $749.21 in favor of appellees. How this $749.21 was arrived at is not certified to us; but we are left to find the proper sum as the judge below did, or as the jury there would have done if the case had been submitted to them. We are not a jury, and can

not assume its functions, wherefore the judgment will be reversed and set aside. The appellees say they got too small a verdict, but, if we think differently, they will remit in accordance with our view of the matter. But the trouble is, we are not a jury to make a finding; and, from the record, we are not sure what are the items of debit and credit found by the trial judge for the one side or the other.

Reversed and remanded.

NATIONAL MUT. BUILDING & LOAN ASS'N OF NEW YORK v. PINKSTON et al.

(Supreme Court of Mississippi. April 7, 1902.)

FOREIGN BUILDING AND LOAN ASSOCIATIONS -STATUTORY PROVISIONS-USURY.

Laws 1886, p. 35, §§ 1, 2, regulating interest, and providing that no person or corporation, except building and loan associations, shall stipulate for a greater rate of interest than 10 per centum, and that every provision of any act theretofore passed creating any corporation, or amending any act creating any corporation, which authorizes it to receive more than 10 per centum, or which is in conflict with Code 1880, § 1141, limiting interest to 10 per cent., is repealed, is not applicable to foreign building and loan associations; and hence a contract with such an association, requiring the borrower to pay a fixed monthly premium and dues, with interest on the loan, the sum of which exceeds the legal rate of interest, is usurious.

Calhoun, J., dissenting.

Appeal from chancery court, Lauderdale county; N. C. Hill, Chancellor.

"To be officially reported."

Bill my Mary E. Pinkston and others against the National Mutual Building & Loan Association of New York to cancel a contract and mortgage for usury. There was a decree in favor of complainants, and defendant appeals. Affirmed.

The appellant was a building and loan association domiciled in the state of New York, and was lending money to its shareholders. It had no local boards or branch offices in Mississippi, but held all its funds and transacted its business at its office in New York; but it had a special agent with limited powers at Meridian, Miss., who was authorized to receive money from members of the association at Meridian, for their convenience, and to transmit the same to the office in New York, and with authority to receive applications for loans and transmit them to New York. Loans were made by appellant company upon the following plan: The borrower was required to pledge to the association his shares of stock, and, in addition to monthly dues of 60 cents per share, was required to pay 6 per cent. interest per annum, monthly, and 50 cents monthly on each share of stock of $100, for eight years. Five-sixths of the amounts paid by shareholders as dues and all payments of interest, premiums, and fines went into the loan fund, and was reinvested,

and all profits derived from that source were apportioned to the shares in force, thus increasing the values of the shares. The articles of association of the company provided that all payments should be made to the association at its New York office, and the bond and mortgage in this case also contained that provision. Appellees, citizens of Meridian, Miss., applied to the local agent of appellant at Meridian for a loan of $2,000 in 1890, after they had subscribed for 20 shares of its stock of $100 each. The application was filled out on printed blanks furnished by said local agent, delivered to him and by him sent to the New York office, where it was considered, and the loan granted. To secure the loan, appellees executed a mortgage on a lot in Meridian, and assigned their shares of stock to the company, in the year 1890. Appellees filed the bill in this case against appellant in the chancery court of Lauderdale county to cancel this contract and mortgage for fraud and usury. The only question involved on the appeal, however, is whether the contract is usurious or not. From a decree declaring the contract usurious, and canceling the contract and mortgage, as the principal had been paid, defendant appealed.

Mayes & Harris and Cockran & Bozeman, for appellant.

W. H. Hardy and Neville & Wilbourne, for appellees, submitted the following brief:

I submit that any construction of the act of 1886, approved March 13, 1886, being chapter 13 of the Acts of 1886, which attributes to the legislature any other purpose and intention than to repeal all acts of the legislature theretofore passed granting to certain corporations and associations the privilege of charging a greater rate of interest than was allowed by the general law, except those acts which granted such privileges to building and loan associations, is not warranted by any rule for the construction of statutes. It will be well at the outset to state the constructions contended for by the appellant and appellees. Appellant contends: (1) That said act was a re-enactment of section 1141 of the Code of 1880, with an exception in favor of building and loan associations. (2) That section 1 of said act granted to all building and loan associations-foreign as well as domestic, and those not then in existence as well as those at that time in operation-the privilege of charging a greater rate of interest than 10 per centum per annum. Appellees contend: The sole purpose and intention of the legislature was to repeal all acts of the legislature then in force which granted to certain corporations and associations the privilege of charging a greater rate of interest than was allowed by the general law, except those acts incorporating building and loan associations, which granted to them such privilege. It will not be denied that section 1141 of Code of 1880 prohibited all

persons and corporations from charging a greater rate of interest than 10 per cent., and that as long as said section was in force no person or corporation could lawfully charge a greater rate of interest than 10 per cent. without authority from the legislature. Did the legislature of 1886 authorize appellant to charge more than 10 per cent. interest? As it is a canon of interpretation of statutes that the legislative purpose and the object aimed at are to be borne in mind, and that language susceptible of more than one construction is to receive that which will bring it into harmony with such object and purpose, rather than that which will tend to defeat it, let us seek to ascertain, if possible, the purpose of, and the object aimed at by, the legislature of 1886. Let us first locate the mischief or defect in the existing law which the act in question was intended to remedy. Was it the granting of the special privilege by the legislature to certain corporations of the right to charge a greater rate of interest than was allowed by the general law, or was it the absence from section 1141 of the Code of 1880 of an exception in favor of building and loan associations? I submit that the mischief was the granting of special privileges, and not any defect in section 1141. It is a fact well known to all persons at all acquainted with the laws and constitutions of this state that from the organization of the state the white people who have dictated the policy of the state, with the exception of about 10 years after the close of the Civil War, have always been opposed to the granting of special privileges. The first sections of the bill of rights in the constitutions of 1817 and 1832 are as follows: "That all free men, when they form a social compact, are equal in rights, and that no man, or set of men are entitled to exclusive, separate public emoluments, or privileges, from the community, but in consideration of public service." It is also a well-known fact that the men who adopted the constitution of 1868, and made the laws during the reconstruction period, were in favor of the granting of special privileges, because it was a source of revenue. True to the motives that actuated them in all their actions, self-aggrandizement and contempt for all that was dear and sacred to the white people of the state, these men when they met in the constitutional convention of 1868, refused to adopt section 1 of the constitutions of 1817 and 1832, and adopted the following in its place: "All persons resident in this state, citizens of the United States, are hereby declared citizens of the state of Mississippi." The constitution of 1868 did not inhibit the granting of special privileges by the legislature. The legislature subsequently granted to certain corporations the right to charge a higher rate of interest than was allowed by the general law. There is one fact that establishes beyond controversy that the legislature of 1886 did not understand this act to grant to building and

loan associations the right to charge a greater rate of interest than was provided by section 1141 of the Code of 1880. To this fact I call the court's attention. The charter of the Natchez Building & Loan Association did not grant to said association the power to charge a greater rate of interest than that fixed by said section 1141. The legislature of 1886 amended said charter by granting it such privilege. The act amending said charter was approved subsequent to the approval of the act of March 13th. See Acts 1886, at top of page 751. Now, if the act of March 13th granted to all building and loan associations the right to charge any rate of interest, why was it necessary to so amend the charter of the Natchez Building & Loan Association? The journals of the senate and house of 1886 shed a flood of light on the act under consideration, and when the act is read in this light all doubts as to the intention and purpose of the legislature vanish. For the convenience of the court in tracing this act I will state that it was senate bill 47. On January 11, 1886, Senator Rose introduced the following bill:

"An act in relation to the rate of interest in this state.

"Section 1. Be it enacted by the legislature of the state of Mississippi, that hereafter no person, bank, corporation or association of persons shall demand or stipulate for a greater rate of interest than ten per cent. per annum, for any money advanced or loaned, or any note, account, or other evidence of debt.

"Sec. 2. Be it further enacted, that every provision of any act heretofore passed, creating any corporation or amending any act creating any corporation, which authorizes any such corporation to take or receive more than ten per centum interest per annum, or which is in conflict with section 1141 of the Code of 1880 is hereby repealed.

"Sec. 3. Be it further enacted, that this act take effect and be in force from and after its passage."

Acts 1886, p. 35.

Can there be any doubt as to the purpose and intention of Senator Rose, or the meaning of the bill as introduced? It cannot, of course, be contended that there was any grant to building and loan associations of the right to charge more than 10 per cent. interest. Nor can it be contended with more reason, I submit, that it was the purpose and intention of the author to repeal or re-enact section 1141 of the Code of 1880. Will any one contend that the author of this bill intended to change the legal rate of interest on "all notes, accounts, judgments, and contracts" from 6 per cent. to 10 per cent., or that it was his purpose to repeal that part of section 1141 of the Code of 1880 relating to the forfeiture of interest in cases where a greater rate of interest than 10 per centum shall be charged? If appellant be correct in its contention that it was the intention and purpose of said act to repeal or re-enact

section 1141, with an exception in favor of building and loan associations, then all notes, accounts, contracts, and judgments made or rendered after the passage of said act bore 10 per cent. interest per annum. The

clause, "or which is in conflict with section 1141 of the Code of 1880," refutes, it appears to me, the contention of appellant that said act repealed or re-enacted section 1141. Another fact which sustains our contention is that the repealing clause of this act does not repeal section 1141, but it does repeal "every provision of any act heretofore passed creating any corporation, which authorizes any such corporation to take or receive more than 10 per cent. interest per annum, or which is in conflict with section 1141 of the Code of 1880." I have attempted to show that it was not the purpose and intention of the author of the bill to amend or repeal section 1141. Now, if that was not his purpose, what was it? There is but one answer, and that is to repeal all acts of the legislature which granted to any "person, corporation, or association of persons" the right to charge a greater rate of interest than 10 per cent. The bill passed the senate without amendment, but when it reached the house it was opposed by the friends of the building and loan associations which had the right under their charters to charge a greater rate of interest than was allowed by the general law.

Representative McCabe, of Warren county, offered an amendment, to wit, "except building and loan associations," after the word "persons," in the fourth line of the first section. See house journal, at bottom of page 443 and top of page 444. The bill passed the house as amended. Now, did the insertion of the words "except building and loan associations" entirely change the purpose of the bill? If the bill, before the amendment, was intended to repeal the acts of the legislature which granted to any person, corporation, or association of persons the right to charge more than 10 per cent. interest, did the amendment so change the bill that its purpose after the amendment was to repeal or re-enact section 1141 of the Code of 1880? I cannot believe that the able counsel for appellant will make any such contention. The very able attorneys for the building and loan association in the case of Sullivan v. Association, 70 Miss. 94, 12 South. 590, contended for the same construction of the act of 1886 that counsel for appellant are contending for in this case. Counsel for appellant will cite the court to the following from the opinion of this court in the Sullivan Case: "The utmost that this remarkable act can be said to do is to authorize building and loan associations to stipulate for and demand a greater rate of interest than ten per cent. per annum 'for any money advanced or loaned' by it." We call the court's attention to the fact that the charter of the Jackson Building & Loan Association, appellee in the Sullivan Case,

granted said association the power to charge a greater rate of interest than 10 per centum, and also to the fact that the only question in the Sullivan Case was, did the act of 1886 authorize building and loan associations to charge interest on premiums? The statement of the court referred to was therefore dictum. Appellant contends that the act in question grants it the right to do a thing which the general law prohibits. Said act must, therefore, be construed strictly against the grant of such right. 23 Am. & Eng. Enc. Law (1st Ed.) p. 398. Now, from what part of the act does appellant claim the grant? From the clause, "except building and loan associations." In other words, a grant is claimed from an exception. If the counsel for appellant be correct in their contention that the act of 1886 granted to building and loan associations the right to charge a greater rate of interest than allowed by section 1141 of the Code of 1880, then we say that said act must be confined in its operation to building and loan associations organized under the laws of this state. It was so held by the supreme court of Alabama in the case of Falls v. Building Co., 13 South. 25, 97 Ala. 417, 24 L. R. A. 174, 38 Am. St. Rep. 194.

WHITFIELD, C. J. This case is controlled by the case of Shannon v. Association, 78 Miss. 955, 30 South. 51. The contention that the act of 1886 (Laws, p. 35) applies to foreign building and loan associations is not maintainable. That act is as follows:

"An act to regulate the rate of interest in this state.

"Section 1. Be it enacted by the legislature of the state of Mississippi, that here after no person, bank, corporation or association of persons, except building and loan associations, shall demand or stipulate for a greater rate of interest than ten per cent., per annum, for any money advanced or loaned, or any note, account, or other evidence of debt.

"Sec. 2. Be it further enacted, that every provision of any act heretofore passed, creating any corporation or amending any act creating any corporation, which authorizes any such corporation to take or receive more than ten per centum per annum, or which is in conflict with section 1141, of the Code of 1880, is hereby repealed.

"Sec. 3. Be it further enacted, that this act take effect and be in force from and after its passage."

We think it clearly appears from the history of the act-which can be gathered from the brief of counsel for appellee, which we direct to be published in full on this point -that said act is not an act merely amend ing section 1141 of the Code of 1880, but is a repealing act. The history of the act shows that the legislature had, by special grants and charters to corporations,-espe