Taylor v. McLaughlin

2 Colo. 12 | Colo. | 1873

Wells, J.

If after plea, pleaded with a verification, the parties proceed to trial without replication, judgment will not be arrested for the irregularity; the proceeding is regarded as a mutual waiver of formal issues, and consensus tollit errorem, such waiver is to be inferred, however, only where it- appears by the record that both parties, or at least the party complaining has consented to the irregularity. In the present case the record fails to show that the plaintiff in error was present at the court below when the cause was set down for trial, or at any time during the trial, or afterward, so long as the cause remained pending in that court. Those recitals of the record which have been relied on in argument, as evidencing the presence of the defendant at the trial below, appears to us insufficient to warrant the conclusion sought to be drawn from them. The judgment of the probate court will, therefore, be reversed, and the cause remanded for further proceedings.

Reversed.