Price v. Marks

Citations

• 103 Va. 18
• 48 S.E. 499
• 1904 Va. LEXIS 2

Syllabus

<p>1. Assumpsit—Affidavit ivith Declaration—Pleas Not Verified—Judgment by Default.—Where a plaintiff in assumpsit has filed with his declaration the affidavit required by section 3286 of the Code, no plea in bar can be filed by the defendant which is not accompanied by the affidavit required of the defendant by said section, unless such affidavit has been waived. If no such plea be filed, the case should be placed by the Clerk on the office judgment docket for the next term after the case is matured, to become final along with other office judgments. If, through error, the case is placed on the writ of inquiry docket, and unsworn pleas be filed, and the case continued to another term, and the plaintiff then moves to strike the pleas out because not sworn to, and the trial court overrules the motion and compels a trial on the pleas, which results in a verdict and judgment for the defendant, this court will, on a writ of error awarded to the plaintiff, set aside the verdict and judgment, strike out the pleas, and enter final judgment for the plaintiff.</p> <p>2. Pleading—Depositions—Waiver.—The mere taking of depositions in a cause which has not been set for hearing, cannot be considered as a waiver of any rights parties may have on mere questions of pleading.</p>