1 Blackf. 286 | Ind. | 1823
Assumpsit. Pleas, non-assumpsit and payment. Issue on the first plea, and a demurrer to the second. Upon a trial of the issue in law, final judgment was rendered for the plaintiff without any regard to the issue in fact.
Thisjudgmentmust.be reversed. The special plea being bad, the plaintiff had a right to have his demurrer sustained, and was entitled to the costs of the issue in law; yet his success on that issue did not of itself entitle him to a recovery on the merits. There was another issue to be tried, and the rendition of this final judgment, before that issue was disposed of, is erroneous
The judgment is reversed, and the proceedings subsequent to the joinder in demurrer are set aside, with costs* Cause remanded, &c.
Had the judgment on the demurrer been for the defendant below — the plea demurred to being an answer to the whole action — the plaintiff could Slot have had judgment on the issue in fact, though it had been found in his favour. In such a case, the only judgment that can be entered is, nil supiat per breve. 2 Arch, Pr. 11.