Klein v. Wells

This was an action of assumpsit. The declaration contained a special count upon a promissory note, and the common counts. There was a demurrer to the special count, and the general issue was pleaded to the common counts. The court below overruled the demurrer, defaulted the defendant and assessed the damages and rendered judgment therefor, without in any way disposing of the issue on the common counts.

It was erroneous to assess the damages while the issue upon the common counts was undetermined.

The correct practice required the court, when the defendant stood by her demurrer to the special…