Herbert v. Wich

45 Md. 474, 1877 Md. LEXIS 3

Opinion

Stewart, J.,

delivered the opinion of the Court.

The plaintiff below declared for a nuisance or the continuation thereof.

The defendant pleaded in bar, a former recovery for the same matter, and the plaintiff was under rule to reply.

Under this state of the pleadings, the defendant having tendered no issue to the country, the docket entry of “Issue joined,” was irregular, and the verdict and judgment erroneous.

There being, in fact, no issue, it was a mistrial. The verdict could not cure the defect, and the motion of the defendant, made the following day, to strike out the verdict and judgment ought to have prevailed, rendering, of course, any motion in arrest of ju'dgment unnecessary.

After the defendant had made the motion to strike out the judgment, and filed reasons therefor, and a day had been fixed for the hearing of the motion, the offer of the defendant to file additional reasons, was a matter within the sound discretion of the Court to permit it to be done or not, and the refusal to allow it to be done, is not the subject of appeal.

(Decided 11th January, 1877.)

The judgment of the Circuit Court, overruling the motion of the defendant, to strike out the verdict and judgment, must he reversed.

Judgment reversed, and new trial ordered.