11 W. Va. 685 | W. Va. | 1877
delivered the opinion of the Court:
This is an action of trespass on the case in assumpsit, brought by the plaintiff against the defendant, in the municipal court of "Wheeling, on the 15th day of October 1873. The defendant, by its attorney, appeared in court to the action on the 17th day of December 1873, and pleaded non-assumpsit, on which issue was then joined.
On the 28th day of February 1874 the parties appeared in court, and a jury of eleven men, agreed to by the parties, were duly sworn to well and truly try the issue
‘“We, the jury, find for the plaintiffs, and assess the damages at $1,300, with interest from this date.
“‘E. J. White, Foreman.’
“And thereupon the cou-rt having heard the arguments of counsel, upon the question of law arising on said demurrer to the evidence, takes until the next term to consider of its judgment thereon.”
Afterwards, on the 16th day of March 1874, an order and judgment in these words was made in the cause by the court, viz: “This day came the parties, by their attorneys, and the court having maturely considered the demurrer of the defendant to the plaintiffs’evidence, and being fully advised of its judgment thereon, doth sustain the same ; therefore it is considered by the court that the plaintiffs take nothing by this action, and that the defendant recover against said plaintiffs its costs,” &c.
Afterwards, and during the same term of the court, the plaintiffs appeared and moved the court to set aside the judgment heretofore entered in this case, which motion was granted, and the cause continued until the next term.
Afterwards, and after some continuances, on the 31st day of August 1874 the plaintiffs appeared in court, by their attorney, and moved the court to enter judgment oh the said verdict, rendered at a former term.
And aferwards, on the 26th day of September 1874,
Afterwards, on the 29th day of June 1875, and at a term of said court subsequent to that last aforesaid, the defendant by its attorney appeared in said court, and moved the court to set aside the - final order of the court in the case, made on the 26th day of September 1874.
Afterwards, on the 8th day of July, but during the same term, at which the said last named motion was made, the court overruled the defendant’s said motion.” To the final judgment of the municipal court of Wheeling, rendered in this cause upon the said verdict of the jury in favor of the plaintiff and against the defendant, the defendant has obtained a supersedeas from this court; and it must now be determined whether there is error in said judgment, for which it should be reversed.
The party who demurs to the evidence, alleges that the evidence is not good and sufficient in law to support the issue joiued on the part of his adversary, who on his part, by joining in the demurrer, avers that it is good and sufficient in law to maintain the issue on his part. Muhleman v. National Insurance Co., 6 West Va. 514. The demurrer should set out the whole of the evidence on both sides, where more than one side introduces evidence. It is evident to my mind from the plain language of the order of the court, made on March 2, 187-2,
For the foregoing reasons, there is error in the said judgment of the municipal court of Wheeling, rendered in this cause on the 26th day of September 1874, for
Judgment Reversed.