Benner v. Welt

The opinion of the Court was drawn up by Tenney, C. J. This is a writ of error, to reverse a judgment recovered by Matthias Welt, against the plaintiffs in error in this Court. The errors assigned are that Lewis Benner, 2d, Edward Benner, 2d, and Isaac Schwartz, were [484] minors and under the age of twenty-one years, at the time of the rendition of said judgment, and did not answer by their guardian, or next friend, or by a guardian ad litem,, appointed for them by the Court as by law was required, and judgment was illegally rendered against said Jacob Benner, 2d, Lewis Benner, 2d, Isaac Schwartz and Isaac Oliver. The defendant in the present suit pleads in mullo est erratum, without putting in issue any fact alleged in the writ of error. ..The pie am nullo est erratum is in. the nature of a demurrer, putting in issue only such errors as may be shown on the face of the record. Goodridge & al. v. Ross, 6 Met. 487. Therefore the alleged fact that three of the plaintiffs in error were minors - at • the- • time the judgment was rendered,, not being traversed-in'the pleadings, is to be treated as admitted. If the judgment is reversed as to a portion of the .present plaintiffs, it cannot be affirmed as to the others. Richards & al. v. Walton, 12 Johns. 434; Arnold v. Sandford, 14 Johns. 417. Exceptions overruled. Rice, Hathaway, Appleton, May, and -Davis, J. J., concurred. ■