Harper v. Bondurant ( 1846 )

Mr. Justice Thacher

delivered the opinion of the court.

In this action, the record exhibits that a demurrer was filed to the third and fourth pleas of the defendant below, and an issue joined upon the first and second; it further exhibits a trial, verdict and judgment in the case without any disposal of the demurrer to the third and fourth pleas. This was error. The argument of counsel proceeds upon the supposition that the demurrer was sustained by the court below, but there is no evidence in the record, of such an interlocutory judgment having been made, and therefore the sufficiency of the causes assigned in the demurrer, is not properly a question pending in this court.

The judgment must be reversed, and the cause remanded for further proceedings.