Armstrong v. Mock

Scates, C. J. The parties went to trial without a formal joinder of issue on the fourth plea. The substance of the plea was property in defendant below, plaintiff here. The third plea put the same fact in issue. Proceeding to trial without a formal issue, is, after verdict, treated as a waiver either of the issue or the plea; and verdict will not be set aside, if there were no plea. Brazzle et al. v. Usher, Breese R. 14; Ross et al. v. Reddick, 1 Scam. R. 74. It is based upon the supposition, and doubtless founded in truth, that the real merits in controversy have been tried and determined. But this reason would not apply, and the rule is otherwise in cases of immaterial issues. Woods v. Hynes, 1 Scam. R. 103. The instructions given at the instance of plaintiff below, although excepted to at the time, are not assigned for error. Those asked by defendant below, have been assigned for error, but no exception to their refusal was taken at the trial. The court have repeatedly held, that the exception must be taken on the trial, and that fact must appear on the face of the record. 3 Scam. R. 17, 23, 63; 5 Gil. R. 453; 11 Ill. R. 72; 1 Scam. R. 252. No question is, therefore, presented for revision in this record. Judgment affirmed.