#### *M’Million v. Dobbins.

July, 1838,

Richmond.

(Absent Bbooke and Cabell, J.)

Pleading and Practice — Office Judgment* — Trial without issue — Effect.!—In an action on the case, if there be an office judgment against the defendant, with a writ of enquiry, and afterwards, without any plea in the cause, the jury be sworn as if there were an issue, and a verdict be found for the defendant, the verdict will be Set aside, and a new trial directed.

Action on the case by James M’Million against William Dobbins, in the circuitocourt of Braxton county, for á deceit in the sale of a horse. The defendant being arrested and not appearing, judgment was entered in the office against him, for such damages as the plaintiff had sustained, which damages were to be ascertained by a jury. At the next term, the cause was continued for the defendant ; and the term after, a jury was impannelled. Although it did not appear by the record that the defendant had pleaded at all, the jury were nevertheless “elected, tried and sworn the truth to speak upon the issue joined.” At the trial, the court was of opinion that in order to sustain the first count in the declaration, it was necessary for the plaintiff to prove, substantially, that the defendant warranted the horse to be sound ; and that in order to sustain the second count, it was necessary to prove, in substance, that the defendant undertook and faithfully promised the plaintiff that the horse was sound. The court was of opinion that the evidence was not sufficient to sustain the action on either count, and so instructed the jury. Verdict for defendant, and judgment thereupon ; to which judgment a supersedeas was allowed.

S. Price for plaintiff in error.

*

PIeading and Practice — Office Judgment — Enquiry of Damages. — Where there has been an office judgment and an order for enquiry of damages, the only question to be ascertained, in the absence of any plea or issue in the case, is the quantum of damages. Petty v. Frick Co., 86 Va. 504, 10 S. E. Rep. 886; Briggs v. Cook, 99 Va. 278, 38 S. E. Rep. 148, both citing the principal case.

tSame — Nonjoinder of issue — Effect.—It is well settled that, if a verdict has been rendered without any issue being joined, it is a mere nullity, and no j udgment can properly be rendered upon it, whether it be a civil or criminal action. And the cases are numerous, both in Virginia -and West Virginia, where verdicts and judgments have been set aside by the appellate court merely because the verdict was rendered when no issue had been joined. Rowans v. Givens, 10 Gratt. 250, 251, and/ooi-reoie (see collection of authorities in this note): State v. Douglass, 20 W. Va. 770; Preston v. Salem Imp. Co., 91 Va. 585, 22 S. E. Rep. 486; Ruffner v. Hill, 21 W. Va. 158; Hickman v. Railroad Co., 30 W. Va. 315, 7 S. E. Rep. 461 (dissenting opinion of Woods, J.); High v. Peerce, 9 W. Va. 294; Shrewsbury v. Miller, 10 W. Va. 122; Brown v. Cunningham, 23 W. Va. 111; B. & O. R. Co. v. Gettle, 3 W. Va. 384; B. & O. R. Co. v. Christie, 5 W. Va. 328, all citing the principal case.

See the principal case distinguished in Briggs v. Cook, 99 Va. 277, 280, 38 S. E. Rep. 148.

Although the record states that the jury was sworn to try the issue joined, yet if it does not show that any plea was filed by the defendant, or that any issue was, in fact, made up, the judgment will be reversed. Sydnor v. Burke, 4 rand. 161, and *M’Million v. Dobbins,*9 Leigh 422, are cited as so holding in Petty v. Frick Co., 86 Va. 505, 10 S. E. Rep. 886.

See further monographic *note*on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.

*PARKER, J.

The record in this case states that the jury were sworn to try the issue joined ; yet there was no plea entered, nor issue made up, in the cause. The judgment must be reversed for this error, and the cause remanded for a new trial. Sydnor v. Burk & ux., 4 Rand. 161.

As, if a plea is entered hereafter by the defendant, the plaintiff may amend his declaration, and rely alone on the deceit in the sale, without stating what the court below considered to be the substantial averment of a warranty which he was bound to prove, it is unnecessary to decide whether, under his declaration in its present form, he was bound to do more than prove the sale of the horse for a sound price, with a knowledge on the part of the vendor that he was unsounded.

TUCKER, P. The question raised by the bill of exceptions in this case is rendered unimportant, by a fatal error in the proceedings anteriour to the motion to instruct the jury. The office judgment which had been rendered at the rules was never set aside, and the cause stood upon a writ of enquiry of damages. Yet the jury were sworn to try the issue joined, when in truth there was no *155issue. This was erroneous. Sydnor v. Burke & ux., 4 Rand. 161. The defendant, by failing to plead, admitted the plaintiff’s right of action. It could no longer be questioned. The only matter remaining to be ascertained was the quantum of damages ; and had the jury been sworn to enquire of damages only, the court must at once have perceived that no question could be raised as to the plaintiff’s right of action. He had a right to some damages, however small, and to his costs also. But by the irregular course of the cause, the defendant, upon the trial of a supposed issue which never existed, is let into a defence which he had waived, and that defence being sustained by the court, judgment is rendered against the plaintiff for his false clam-our *and for costs, while there is in the record a judgment in the office in his favour against the defendant, which has never been set aside and is now in full force. The judgment must be reversed, and the cause sent back for the purpose of having the writ of enquiry properly executed. The defendant may then, if he desires, set aside the office judgment; and upon his motion to do so, the plaintiff, if he wishes it, will he entitled to leave to amend his declaration, by adding a count, or otherwise.

BROCKI5NBROUGH, J., concurred. Judgment reversed.