Wheelock v. Fitch

3 Port. 387

Opinion

Per Curiam.

The plaintiff, (who was defendant below,) pleaded several pleas, in short, as it is slated by consent, and one special plea at length, concluding with a verification — all of winch are signed by his counsel only. At the foot of the pleas we find an entry in these words: “Demurrer in short, by consent, to all the pleas of the defendant.” (Signed,) “ Smith.” The demurrer does not seem to have- been noticed; nor was thereany replication or issue to any oí the pleas. It no where appears by the record, that “ Smith” was the plaintiff’s attorney. The declaration is signed “ Shortridge, P. Q.”

Without determining whether the pleas in short, or the demurrer are so pleaded, as,to have required the notice of the Court below, we are satisfied that the Court erred in trying the case bv a jury, with-a replication to the defendant’s plea.

a

If ^ie plaintiff in error had obtained a verdict., it jvould not have been competent for the defendant to object that there was no issue, because the failure to continue the pleadings, resulted from his neglect: and it is 'settled by this Court, in Castleberry vs. Pearce,b that a party omitting to plead', shall not avail himself of his omission, on error.

The judgment is reversed and the cause remanded,

Minn's R. 137-2 Stew 483.

stewart & Porter 141.