Ward v. Moore ( 1834 )

Peck, J.

delivered the opinion of the court.

The first error in the pleading was committed by the defendant, the plea not averring that the payer resided in the county where the contract was made. This makes the plea defective. It is not material therefore, what was the replication, the defendant’s demurrer hit bis own plea.

The circuit judge was right in reversing the judgment of the county court. But he would have been more intelligible if he had given us his opinion on the demurrer. It is highly probable he treated these brief replications and demurrers as nullities, as they always should be treated. Taking it for granted that such were his views of the pleading, then a writ of inquiry should have been awarded. Amidst irregularities committed in the pleadings and judgment, three things appear upon this record: First, a good declaration; Second, a confession of judgment, though that is set aside; Third, a trial as upon an issue, when in fact none appears, and judgment of the court for the plaintiff. We are not satisfied with the record, for its informalities, yet as there has been atrial as upon an issue, and as we are satisfied that the merits have been reached, we can, by virtue of an act of assembly authorizing a disregard of form and an adherence to merits, affirm the judgment.

Judgment affirmed.