Marlow v. Hamer et al., 6 Howard 189

Mr. Justice Turner. The error relied on by the plaintiff, is, that the court below gave final judgment for the plaintiff below, on the verdict of the jury rendered on the plea of non assumpsit, when there was a demurrer, undisposed of, to a special plea in the cause. This is clearly erroneous. Although the plea is not a good one, as seems to be admitted by the counsel, yet the plaintiff, having demurred to it, instead of moving the court to treat it as a nullity, or to strike it from the papers as frivolous, cannot now be permitted to treat it as a nullity or as frivolous.

He might have taken judgment in the court below by default for want of joinder, or have asked the court for its opinion on the plea demurred to. This is not like the case in 4 Howard, 142. In that case there had been the action of the court on the plea, and it was treated as a nullity. Here the plea is answered by the demurrer, and it was the fault of the plaintiff below to demur, when he might have had. it stricken from the papers. Nor is the case in 5 Howard, 258, like the present. We are also of opinion that this case is not cured by the statute of jeofails.

It will not do to allow a party to demur to a plea, and treat his own demurrer as a nullity. If the record sent up is not right, it might have been amended by sending for one more perfect. This has not been suggested, and we must consider it perfect. Judgment reversed, and cause remanded for further proceedings in the court below.