Cline v. Star Coal & Coke Co.

153 S.E. 148, 109 W. Va. 101, 1930 W. Va. LEXIS 21

Opinion

Maxwell, Judge:

This is an action for damages to the surface of land caused by the removal of coal from under the same. The defendant prosecutes this writ of error to a judgment of the trial court rendered upon a jury verdict.

Through inadvertence there was no plea nor joinder of issue. This is fatal error. Coal & Coke Co. v. Cunninghame, 93 W. Va. 12, 116 S. E. 719, and many cases there cited.- This basic rule covering an indispensable element of procedure has been reiterated in the later cases of Mining Co. v. Coal Co., 96 W. Va. 11, 122 S. E. 286, and Trust Co. v. Todd, 101 W. Va. 31, 131 S. E. 638.

It would be a vain thing to'undertake to discuss the merits of the ease when the whole trial in the circuit court was abortive. What we might say would be pure dictum.

We reverse the judgment, set aside the verdict, and remand the case for further proceedings.

Reversed and remanded.