Brown v. Cunningham

Geben, Judge: It will be observed, that Coyle pleaded not guilty to the declaration in ejectment filed in this case; that Cunningham as his landlord was afterwards made a co-defendant with him; that Coyle then died, and the case was discontinued as to him. Cunningham never put iu any pica, yet a jury was sworn to try the issue joined, when in fact no issue had been joined by the plaintiff and the only defendant in the case. This jury found a verdict for the defendant on a demurrur to the evidence, “if the law be for the defendant; and it the law be for the plaintiff, they found for the plaintiff the premises in the declaration mentioned, and that she had an estate therein for life and had sustained one cent damages for the detention thereof.” The court decided, that the lawr was for the plaintiff on the demurrer to evidence, and rendered a judgment in her favor pursuant to this verdict; and under a writ of possession the defendant, Cunningham, has been ousted, and the plaintiff put in possession of this land. It is well settled, that if a verdict has been rendered without any issue being joined, it is a mere nullity, and no judgment can properly be rendered upon it, whether it be in a civil or criminal action. (Stevens v. Taliaferro, 1 Wash. 155; Grymes v. Pendleton, 4 Call 130; Taylors, &c. v. Huston, 2 H. & M. 161; Kerr v. Dixon, 2 Call 279; Wilkison's Adm’r v. Bennett, 3 Munf. 314; Sydnor v. Burke, 4 Rand. 161; McMillion v. Dobbins, 9 Leigh 422; Rowmans v. Givens, 10 Gratt. 250; B. & C. Railroad Co. v. Gettle, 3 W. Va. 376; B. & O. Railroad Co. v. Faulkner, 4 W. Va. 180; Gallatin’s Heirs v. Heywood’s Heirs, 4 W. Va. 1; B. & O. Railroad Co. v. Chris [112] tie, 5 W. Va. 325; State v. Douglass, 20 W. Va. 770; Ruffiner v. Hill, 21 W. Va. 159.) These decisions were rendered in a great variety of cases. In actions of debt, detinue, trespass on the case, assumpsit, writs of right, indictments and ejectments. In the last of these cases, which was an action of ejectment the grounds of these decisions are thus stated: “By the common law the court has no right to make up the issue and empanel a jury to try it; but the parties by their pleadings must first come to an issue, and then it is tried by a jury. When therefore the record shows, that the parties by their pleadings have not come to any issue, but nevertheless the record shows that the issue was tried, this issue must either have been illegally made up by the court or by blunder it must have been assumed to have been made up by the parties, when in fact it was not.” For this reason the judgment of the circuit court of Randolph county of September 25, 1882, must be set aside, reversed and annulled, and the plaintiff in error must recover of the defendant in error his costs about his writ of error in this Court expended; and the verdict of the jury and the demurrer to evidence must also be set aside and annulled; and this case must be remanded to the circuit court of Randolph county to be further proceeded with according to the principles laid down in this opinion and further according to law. And the plaintiff in the court below having been put into possession of the tract of laud churned in the declaration under the judgment of the circuit court of Randolph county above reversed, it is further adjudged and ordered, that the defendant in the court below, Solomon Cunningham, be restored to the possession of said laud, and that he have leave to sue out a writ of possession to regain the possession thereof. REVERSED AND REMANDED.