Treusch v. Kamke

Stone, J., delivered the opinion of the Court. In this case there was a general demurrer to the declaration. The demurrer was,overruled, and the plea of not guilty entered; the case was tried before a jury, and the verdict being against the defendant below, the appellant, he has appealed to this Court. The judgment of the Court below in overruling the demurrer is open for review in this Court.

In deciding upon the question raised by the demurrer, we are confined to the declaration alone, and cannot consider the subsequent verdict. It is a matter of regret that so much of the Act of 1856, ch. 112, that required the particular grounds of the demurrer to be assigned, should not have been re-enacted in the Code. Without such requirement the attention of the Court and counsel is often not called to the objectionable part of the declaration or plea until the case reaches the appellate Court, and the opportunity for amendment is lost, except at the cost of another trial. The case before us, we think, well illustrates the advantage of the part of the Act of 1856, above alluded to.

We are well satisfied that had the attention of either the Court or the counsel been called to the defect, apparent upon the face of this declaration, it would have been amended before the trial. The fatal and only defect in the declaration in this case, at least as to the first and second counts, is the fact that no damages are laid or claimed in it. Under the old system of pleading, such. omission was certainly fatal, even after verdict. Faget vs. Brayton, 2 H. & J., 350 , and Chilton vs. Jones, 4 H. & J., 62, and Kennerly’s Ex’rx vs.