Schindel v. Suman

Bartol, J., delivered the opinion of this court. The arheadment of the record in this case shows, that upon the trial of the issues of fact, in the Circuit court, a final' judgment was rendered against the appellant. [314] (Decided April 28th, 1859.) This distinguishes the case from the principal decided in 7 Gill, 33, Wheeler vs. State, use of Admr’s of Bateman. The motion to dismiss the appeal must be overruled. The case being properly before us, the only question for our decision arises upon the demurrer to the third plea. This question is identical with the one decided by the former Court of Appeals, in 2 Harris & Gill, 178, Offutt vs. Offutt. There it was held, that “the record of an action of assumpsit between the same parties, in which the jury assessed the plaintiff’s damages at a less sum than $50, and the court for want of jurisdiction gave judgment for-defendant, treating the verdict as a nullity, is no evidence of the former recovery of the debt due from the defendant to the plaintiff, nor can it operate as a bar in another action for the same debt.” To avoid the effect of that decision, the appellant has referred to the 4th section of the act of 1835, ch. 201, which altered the legal effect of such a verdict. But, by the act of March session 1841, ch. 64, sec. 1, the act of 1835, ch. 201, was repealed, so far as relates to Washington county, leaving the law, in this respect, where it stood at the time of the decision of Offutt vs. Offutt, which we regard as conclusive of the present case. Judgment affirmed.