Beall v. Mansell

2 Ky. 202, 1 Sneed 202, 1802 Ky. LEXIS 77

• Court: Court of Appeals of Kentucky
• Decided: November 11, 1802
• Status: Published

Opinion

In this suit it appears that by mistake an inquest of damages was had in the court below upon an office judgment entered against the defendant, whereas no such judgment existed ; and on the defendant’s withdrawing his demurrer and declining to plead de novo, it was necessary that the court should have ordered a nihil dicet to be entered, to authorize the empannelling a jury of inquest. But this not appearing to have been done, and there being nothing in the record on which to found a presumption that it was done, but rather the reverse, the judgment rendered by the court is erroneous. Therefore, it is considered by the court, that the judgment aforesaid be reversed and set aside; that the cause be remanded to the court from whence it came for new proceedings to be had therein, to commence by permitting the defendant to plead to issue if he shall think proper, or if he refuses to do so, by permitting a nihil dicet to be entered against him, and that the plaintiff recover .of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.