ERROR TO McHENRY.
It is erroneous to enter final Judgment against a defendant, when the issue presented by a plea has not been tried.
This was an action of assumpsit brought by the defendants in error in the McHenry Circuit Court. Several pleas in addition to the general issue, were filed by the defendants; to the special pleas, demurrers were filed, which were sustained by the court, and the defendants standing by their pleas, judgment was rendered for the plaintiffs for the sum of $530 42, without any notice of the issue joined upon the plea of non-assumpsit.
The cause was heard before Henderson, Judge, at April term, 1851.
C.. McClure, for Pltffs in Error.
J. Loop, for Hefts in Error.
Treat, C. J.
This judgment must be reversed. After sustaining a demurrer to several special pleas, the Court proceeded to render a final judgment against the defendants, without noticing a plea of non-assumpsit.
The issue presented by that plea had to be tried and found against the defendants, before the plaintiffs were entitled to judgment.
The judgment is reversed, and the cause remanded.
Judgment reversed.