#### Creel v. Brown.

August, 1842,

Lewisburg.

(Absent Brooke, J.)

Pleading—Demurrer*—Misjoinder of Counts.— Where one of the counts in a declaration is in case for a tort, and another in assumpsit, a general demurrer to the declaration for such misjoinder ought to be sustained.

Appellate Practice—Defective Declaration—Demurrer-Reversal.†—There being a demurrer to a declara, tion, and an issue in fact, a verdict is found for the plaintiff, and it does not appear that any judgment was given on the demurrer, otherwise than by implication from the fact that final judgment was given for the plaintiff after the verdict. The *244court of appeals Is of opinion that the demurrer ought to have been sustained. Held, the judgment must be reversed, the verdict set aside, and the cause remanded to the circuit court, that it may proceed to judgment on the demurrer, unless the plaintiff shall, on leave obtained in that court, amend his declaration; and if the declaration be amended, for such further proceedings as may in that case be proper.

In an action in the circuit court of Wood county, by William Brown against Bushrod W. Creel, the declaration contained two counts, of which one was in case for a tort, and the other in assumpsit. The defendant demurred generally to the declaration, in which demurrer the plaintiff joined; and issues in fact were *also joined, upon the plea of not guilty to one count, and non assumpsit to the other. On the issues in fact, a verdict was found for the plaintiff; and then a motion for a new trial being made and overruled, it was considered by the court that the plaintiff recover against the defendant the damages assessed by the jury, and the costs.

On the petition of the defendant, a supersedeas was awarded.

Risher, for plaintiff in error.

William A. Harrison, for defendant in error. ,

*

Demurrer—Misjoinder of Causes.—See monograpic *note*on “Demurrers” appended to Com. v. Jackson. 2 Va. Cas. 501.

†

 Appellate Practice—Demurrer to Declaration—Judgment Reversed.—See *foot-notes*to Strange v. Floyd, 9 Gratt. 474; Hamtramck v. Selden, 12 Gratt. 28.

In Hamtramck v. Selden, 12 Gratt. 32, it is said: “I think the court erred in sustaining the general demurrer to the pleas .filed, and that the judgment should be reversed. And under the authority of *Creel v. Brown,*1 *Rob.*265, Strange v. Floyd, 9 Gratt. 474, and other cases in this court, the cause should be remanded with instructions to overrule the demurrer, and render judgment for the defendants below on their pleas, unless the plaintiffs below should ask leave to withdraw their demurrer and reply; which, if asked for, should be granted.”

The principal case is cited in this connection in Strange v. Floyd, 9 Gratt. 476; Reid v. Field, 83 Va. *24434, 1 S. E. Rep. 395. See also. Cromer v. Cromer, 29 Gratt. 286; 1 Va. Law. Reg. 900.

Demurrer to Special Plea—Failure to Pass upon.— Failure of the court to pass upon demurrer to one special plea, and motion to exclude another special plea, affords no ground for reversing the judgment, if these pleas presented no har to the action. Peshine v. Shepperson, 17 Gratt. 180, 91 Am. Dec. 168. citing the principal case.

STANARD, J.,

delivered the following as the opinion of the court:

It appears to the court that the issue in fact was tried before any judgment on the demurrer to the declaration, and it does not appear that any judgment was given by the court on the demurrer, otherwise than by implication from the fact that final judgment was given after the verdict. Though, according to the decision of this court in the cases of Green v. Dulany, 2 Munf. 518, and Jones v. Stevenson, 5 Munf. 7, it was irregular to try the issue of fact before judgment on the demurrer, yet if it appeared that the demurrer ought to have been overruled, and so no inconvenience had ensued from that irregularity, it would not be sufficient cause to reverse the judgment. But as it appears to this court, that by reason of the misjoinder of action, (one of the counts in the declaration being in case as for a tort, and the other in assumpsit) the demurrer ought to have been sustained; andas the plaintiff might (had the right judgment on the demurrer in the court below preceded the trial of the issue) have cured the defect in the declaration by amendment, and from that benefit the irregularity of first trying the issue in fact would have precluded him, the objection founded on this irregularity *becomes substantial, and ought to pervail, so far as to entitle him to have the cause placed in the court below in the position it would have occupied had the irregularity not occurred. The court is therefore of opinion that the judgment be reversed with costs, the verdict set aside, and a new trial of the issue in fact awarded; and that the cause be remanded to the circuit superior court, that it may proceed to judgment on the demurrer, unless the plaintiff should, on leave obtained in that court, amend his declaration; and if the declaration be amended, for such further proceedings as may be proper on the present pleadings, and such other pleadings as may be offered by either party and admitted by the court.