Browder v. Irby

BRICKELL, C. J. As a general rule, applicable to all pleading in civil suits in courts of law, the statute declares, “no demurrer in pleading can be allowed but to [381] matter of substance, wbicli the party demurring specifies ; and no objection can be taken or allowed which is not distinctly stated in the demurrer.” — Code of 1886, § 2690. A demurrer in the form and language of the demurrers of the defendants to the plaintiff’s replication to the plea, lias been .uniformly construed as the mere general demurrer known to the common law, which cannot be entertained. — 8 Brick. Dig. 705, §§ 570-79, and other authorities cited on brief of counsel. Issue was taken on the replication, and the matter of it was supported by the undisputed evidence. In this state of case, without regard to the sufficiency or materiality of the replication, it was the duty of the court to instruct the jury according to the evidence, for verdicts must be responsive to the issues formed. As the court has repeatedly said, parties in suits at law may form their own issues, and if the evidence supports the party holding the affirmative of an issue, however immaterial it would have been if there had been proper pleading and proper issues, the instruction to the jury must conform to the issues. The charge requested was a mere repetition of the. facts stated in the pleas, which were confessed and avoided by the replication, and was properly refused. The judgment must be affirmed.