Winfried v. Yates, 1 Dallam 363

SHELBY, Justice. Reasons for reversal: 1. Because the court should have sustained the demurrer. There was no tenable ground assumed to sustain this reason. 2. Because there is no judgment either sustaining or annulling the demurer. The court is of opinion that no such judgment was necessary; it being a proceeding in equity, and submitted to the court, it was not necessary that the record should show as much particularity in disposing of a demurrer, in our system, when acting in pursuance of the civil law, as when governed by the common law; as the former is governed by rules of equity. 3.

Eeason assigned in support of the motion is that plea was withdrawn, and there was no issue joined.

This we believe was not necessary, because it is conceded that our system and method of proceedings in court by petition and answer does not require issue to be joined; but the parties may proceed without issue joined, and may agree to submit the matter to the court upon the statement in the petition alone; and this we consider virtually the case in this instance, as the record shows the withdrawal of plea by the counsel of defendant below and submission to the court, which we believe was in effect a waiver of any informality in pleading or proceeding.

We are therefore of opinion that the reasons aforesaid by the counsel of appellant assigned, as above set forth, be overruled, and that the judgment below be affirmed against appellant and his securities in appeal bond for the debt, interest and costs, together with 10 per cent damages besides interest and costs since the appeal (See 3 Cranch, 320, and Peters’ Condensed Eeports of Supreme Court, TJnited States), where the distinction is drawn between courts of equity and common law.

In that case it is said, “In cases of equity, or admiralty jurisdiction removed to this court, accompanied with a statement of facts, but without the evidence, the statement is conclusive as to all the facts it contains.” Let the judgment be affirmed as aforesaid. Affirmed. Chief Justice Busk and Judges Hemphill and Mills say: “In concurring with Judge Shelby, we mean only to concur in the affirmance of the judgment in the court below, and not in what is said upon the subject of courts of equity, pleading and issue.”