Bratton v. Mitchell
Supreme Court of Pennsylvania
ERROR to Mifflin county. This was an action of ejectment by George Mitchell against Charles Bratton and James Bratton, in which Charles, one of the defendants, appeared and pleaded to issue, and James appeared and disclaimed all title to or possession of the land.
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ERROR to Mifflin county. This was an action of ejectment by George Mitchell against Charles Bratton and James Bratton, in which Charles, one of the defendants, appeared and pleaded to issue, and James appeared and disclaimed all title to or possession of the land. When the cause came on for trial, the counsel of James objected to the jury being sworn as to him; but the .court said that the proper practice was to swear the jury as to both defendants, and it the plaintiff failed to prove both in possession, a verdict would be rendered for him who was not. The counsel for James excepted to this…
1Opinion of the Court
The opinion of the Court was delivered by
Rogers, J.
After a trial on the merits, the court will not reverse
a judgment, because there was no plea or no issue. This principle was decided in Sauerman v. Weckerly, 17 Serg. & Rawle 116, and is based on the equitable ground that an omission to compel the opposite party to perfect the pleading, ought to be considered a tacit agreement to waive matters of form, and try the cause on its merits. Notwithstanding this case, it has never been supposed that a party • can be compelled to try until the cause is put into legal form by an issue, properly formed…
2Cases cited1 opinion
- Sauerman v. WeckerlySupreme Court of Pennsylvania · 1827
3Cited by6 opinions
- Ex parte NelsonSupreme Court of Alabama · 1878
- Roberts v. WilliamsSupreme Court of Pennsylvania · 1840
- Barker v. McCrearySupreme Court of Pennsylvania · 1870
- Lane v. HarroldSupreme Court of Pennsylvania · 1870
- United States v. JarvisU.S. Circuit Court for the District of Maine · 1847
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