Huse v. Moore

Field, C. J. delivered the opinion of the Court—Norton, J. concurring. It does not appear from the record that any disposition was ever made by the Court of the demurrer interposed to the defendant’s answer. Nor does it appear that there was any consent of the parties to proceed to the trial of the cause, from which an abandonment of the demurrer might be inferred. The record merely shows a complaint, an answer, a demurrer to the answer, and an order of the Court upon motion of the plaintiff, directing judgment in his favor for the amount claimed. The record should disclose the disposition made of the demurrer by the Court, or the abandonment of the demurrer, or proceedings from which an abandonment may be inferred, and if the cause was tried before a jury, their verdict, or if by the Court, its findings. The case arose before the Act of May 20th, 1861, regulating appeals, took effect. (Laws of 1861, chap. 522, sec. 1.) Judgment reversed and cause remanded.