Nutter v. Sydenstricker
West Virginia Supreme Court
Supersedeas to a judgment of the circuit court of the county of Greenbrier, rendered on the 19th day of June 1875, granted upon the petition of Philander, Syden-stricker defendant below, in a certain action of assumpsit, then pending in said court, in which Jeremiab Nutter was plaintiff, and John F. Sydenstricker and said Philander Sydenstricker were defendants. Hon. Homer A. Holt, Judge of the eighth judicial circuit, rendered the judgment complained of.
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Supersedeas to a judgment of the circuit court of the county of Greenbrier, rendered on the 19th day of June 1875, granted upon the petition of Philander, Syden-stricker defendant below, in a certain action of assumpsit, then pending in said court, in which Jeremiab Nutter was plaintiff, and John F. Sydenstricker and said Philander Sydenstricker were defendants. Hon. Homer A. Holt, Judge of the eighth judicial circuit, rendered the judgment complained of. JOHNSON, Judge, who delivei’ed the opinion of the Court, furnishes the following statement of the case : At rules on the first Monday in…
1Opinion of the CourtJohnson, Judge
It is alleged as error, that the case was remanded to rules, with leave to the plaintiff to file an amended declaration; and the record does not disclose that any-amended declaration was ever filed, or how the case came again upon the trial docket.
It was perfectly competent for the court to ignore the order made remanding the case to rules, where the defendant was in court, at the time the trial was had, and not objecting thereto.
The demurrer ought to have been overruled; the common money counts in the declaration were certainly good, as is also the second of the special counts: the demurrer…
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