120 Mass. 336 | Mass. | 1876
No question of law is properly before us. After reciting the evidence, the report states that thereupon “the defendant demurred to the evidence, and the case is reported for the determination of the Supreme Judicial Court, it being agreed that if the defendant’s demurrer be sustained, there shall be an entry of verdict for defendant: otherwise a new trial.”
A demurrer to evidence is rarely resorted to in our practice, as the statutes furnish more simple and convenient modes of raising any questions of law which it is desired to submit to this court. Such demurrer, when taken, must be in writing, and there must be a joinder by the adverse party, so that the record may raise an issue of law upon which the court may give judgment. One of the effects of a demurrer is, that it admits all the facts which the evidence of the plaintiff tends to prove; another is, that if the demurrer is overruled, the plaintiff is entitled to judgment. Copeland v. New England Ins. Co. 22 Pick. 135. Gibson v. Hunter, 2 H. Bl. 187. Fowle v. Common Council of Alexandria, 11 Wheat. 320.
In this case there was no written demurrer filed by the defendant and no joinder by the plaintiff. It appears that the defendant demurred orally, and, although the papers transmitted to us show that a verdict was rendered for the plaintiff, the report provides that if the demurrer is overruled there is to be a new trial. The whole proceeding was irregular and erroneous.
Report dismissed.