Riddell v. Douglas

60 Md. 337 | Md. | 1883

Robinson, J.,

delivered the opinion of the Court.

This is an action to recover damages for an assault and battery.

The declaration contained two counts. To the second, the defendants demurred, and the demurrer was sustained by the Court.

Issue was joined on the first count, and on this issue the case was tried before the jury.

After verdict, a motion was made in arrest of judgment, on two grounds:

First. Because the plaintiff did not amend the declaration.

And secondly. Because no judgment was entered on the demurrer to the second count.

Neither of these grounds is sufficient to justify the Court in arresting the judgment. Where the demurrer is to the whole declaration, and the demurrer is sustained, the defendant is entitled to judgment, unless the plaintiff asks leave to amend. If, however, the demurrer is to some of the counts only, and the demurrer is sustained, the plaintiff' may amend the declaration, by the addition of other counts, or he may stand on the counts admitted to be good. Strictly speaking, the defendant is entitled to judgment on the demurrer to the defective counts, but the usual practice is, merely to strike out the bad counts, unless the defendant insists on judgment as to such counts. Now in this case, the defendants did not ask for judgment on the demurrer to the second count. On the contrary, the count was stricken out without objection, by drawing-a pencil-mark across the face of the same, and issue was joined on the first count. We cannot understand how the defendants were in any manner prejudiced, or how the jury could have been misled by. this proceeding. The only papers to which the jury were entitled were the pleadings, and the instructions granted by the Court. The declaration on its face shows, that the second count was. stricken out, and the whole pleadings show, that the case was tried on the issue joined to the first count. In addition to this, the instructions granted bjr the Court, and which were conceded on both sides, referred solely to the plaintiff’s right to recover on the first count.

(Decided 20th June, 1883.)

The motion in arrest of judgment was therefore joroperly overruled.

Judgment affirmed.