Keirle v. Shriver

Spence, J., delivered the opinion of the court. The court below erred in permitting the administrator of John W. Keirle to be made a party to the suit; it should after the death was suggested have been prosecuted in the name of the surviving partner, but of such appearance and the judgment rendered, the administrator has no right to complain. The appearance was entered at his instance; he was entitled to no judgment against the appellee; and consequently, he has sustained no such injury from the judgment of the county court, as would entitle him to its reversal by this court. The judgment below was liable to arrest on more grounds than one. The verdict was not only liable to objections on the ground that it was founded on a count in the declaration, insufficient in law to warrant any judgment thereon, but it found a fact which did not entitle the plaintiff to a judgment, even if the declaration had been unexceptionable. There were issues joined upon the pleas of limitations, on which the jury omitted to make any finding. Until these issues were found for the plaintiffs, they were entitled to no judgment against the defendant, if he did promise in manner and form, &c., as found by the jury. That the judgment must be arrested on account of the jury finding but part of the matters in issue, see Gould’s Plds. 522. There is error also in the judgment, because it adjudges, that the verdict he set aside, -which places the case in the same situation as if no verdict had been rendered, and a venire de novo is the necessary consequence. Of the effects of this error .so beneficial to the plaintiffs, surely they have no right to complain. If all the preceding objections to the judgment below were removed, as to the judgment of the court on the motion in arrest, it is defective on another ground. If rendered for the defendant, as it was designed manifestly to be, it should have awarded, that he go thereof without day, &c., the omission to do which, left the case still pending in the county court: by this defect in the judgment, the appellants certainly are not aggrieved. [407] The judgment of the county court not being a final determination of the matters in controversy, or of the cause therein pending, the appeal to this court has been prematurely taken, and must therefore be dismissed, that such further proceedings in the cause may be had in the court below, as the nature of the case may require. Appeal dismissed.