William F. Bradshaw v. Peter McKinney, 4 Scam. 54

Treat, Justice, delivered the opinion of the court: Assumpsit on a note and guaranty. The declaration contains two counts. The defendant filed four pleas to the first count, and a demurrer to the second count. There was a demurrer to the third and fourth pleas, which was sustained. The record shows that the court, without deciding the demurrer to the second count, or noticing the first and second pleas, directed the clerk to assess the plaintiff’s damages, and rendered judgment on the assessment. The decision is now assigned for error.

It was clearly erroneous to render judgment without [* 55] first deciding the demurrer. McKinney v. May, 1 Scam. 534; Nye v. Wright, 2 Scam. 222. It was also erroneous to render judgment without first trying the issues tendered by the defendant, on his first and second pleas. Manlove v. Bruner, 1 Scam. 390; Lyon v. Barney, 1 Scam. 387. For these errors the judgment of the circuit court is reversed with costs, and the cause remanded for further proceeding. Judgment reversed.