Baltimore & Ohio Railroad v. Faulkner , 4 W. Va. 180 ( 1870 )

Maxwell, J.

The first ground of error assigned is, that the court erred in trying the ease and giving judgment against the petitioner without any replication ever having been filed to either of petitioner’s pleas, or without any issue joined in the case. There were two pleas filed by the defendant below, one the general issue, and the other the plea of the statute of limitations, on neither of which was issue joined. The trial of the case was had before the court instead of the jury, under section 38 of ch. 162, Code of Va., 1860, p. 693. The intervention of a jury was by consent dispensed with, and the cause submitted to the court, and the court having heard the evidence and argument of counsel, rendered a judgment for the plaintiff".

The court occupied precisely the relation to the case that a jury would have done if the case had been tried by a jury. Pryor vs. Kuhn, 12 Gratt., 615; Wickham and Goshorne vs. Lewis Martin & Co., 13 Gratt., 427.

It was not submitted to the court on a ease agreed, as was the case of Sawyer vs. Corse, 17 Gratt., 230, relied on by the counsel for the defendant in error.

If, in this case, there would have been error for the want of issues, if the case had been tried by a jury, such error is not waived in consequence of the trial by the court in place of the jury.

In respect to the plea of the general issue, it was long ago decided that a failure to add a similiter was not error after trial. Brewer vs. Turpley, 1 Washington, 363. And it is expressly provided in the Code of Va., 1860,ch. 181, sec. 3, that the want of a similiter shall not be error after verdict. So that, as to the plea of non-assumpsit, there was no error in trying the case without a formal issue.

But the plea of the statute of limitations, which concludes with a verification, and in which an issue could not be made by the addition of a similiter should have been replied to before trial, and the want of replication is not cured by the judgment rendered. Tatley’s Executor vs. Donald & Co., 4 Munford, 430; Green vs. Dulany, 2 Munford, 518.

The second ground of error assigned is, that the court erred in giving judgment against the petitioner on the plea of non-assumpsit, instead of giving its judgment in favor of the petitioner upon the pleadings and proofs in the ease, because the evidence was not sufficient to make out the plaintiffs case.

The evidence certified is sufficient to warrant a judgment for the amount recovered, so that this point is not well made; and this is also an answer to the third assignment of error.

The fourth cause assigned as error is, that the court erred in giving judgment against the petitioner, notwithstanding the bar of the statute of limitations.

The plea filed excludes the time from the 17th day of April, 1861, to the 27th day of February, 1866, while the time excluded by law is from the 17th day of April, 1861, to the 1st day of march, 1865, in actions of assumpsit. Gore vs. McLaughlin, 3 W. Va. Rep., 489. This is a mistake to the advantage of the defendant in error.

It is not necessary or even proper to express any opinion as to the amount barred, or not barred, because the case will have to go back to be tried over again for want of issue on the plea of the statute of limitations.

The judgment complained of will have to be reversed, with costs to the plaintiff in error, and the cause remanded for a new trial to be had upon the principles herein indicated.

The other judges concurred.

Judgment reversed.