State v. Gaither

• Decision Date: 30 April 1825
• Citation: 1 Mo. 501
• Parties: THE STATE v. GAITHER AND PEARCE, IMPLEADED WITH GAITHER.
• Court: Missouri Supreme Court

1 Mo. 501

THE STATE

v.GAITHER AND PEARCE, IMPLEADED WITH GAITHER.

Supreme Court of Missouri.

April Term, 1825.

PETTIBONE, J.

In this case there was a special plea, to which there was a demurrer and joinder; also, a plea of non-assumpsit and issue. A general judgment has been entered for the plaintiff, in the words following: “This day came as well the State by her attorney, as the defendants by their attorneys, and thereupon, the demurrer of the plaintiff to the plea of the defendants being urged, and adjudged good, it is considered by the court that the defendants did assume and promise to pay, as charged against them, and that the plaintiff recover against the defendants.” &c. This can be considered only as a judgment on the demurrer, especially as the issue in fact does not appear to have been submitted to the court. This judgment is wrong. There is yet an issue to be tried, which, if found for the defendants, will bar the action of the plaintiff; and until all the issues which go to the right of action are disposed of, a general judgment of this kind cannot be entered.^(a) The judgment must be reversed, and the cause remanded for the trial of the other issue; and the plaintiffs in error must recover the costs in this court.

(a). Posey v. Buckner, 3 Mo. R. 604