State ex rel. Crumbacker v. Seabright

Citations

• 15 W. Va. 590
• 1879 W. Va. LEXIS 47

Syllabus

<p>1. In a case tried by a court in lieu of a jury it is not error in the the court to hear illegal testimony, the court being fully competent to discard such evidence.</p> <p>2. Where a plea is so defective as not to raise a substantial defense to the action, the plea is bad, even under the statute of jeofails; and a repleader ought to be awarded by the Appellate Court, though no objection was raised thereto in the court below, and issue had been joined thereon.</p> <p>3. But where an improper or defective plea raises a substantial defense to the action, and it is unobjected to in the court below, and issue is thereon joined, after verdict or judgment it is too late to object; the defect being cured by the statute of jeofails.</p> <p>4. Where a declaration on an executorial bond alleges the recovery of a judgment de bonis testatoris against the executor, and an execution issued thereon, with return oí nulla bona, the declaration is not supported by the introduction of a judgment against the executor de bonis propriis, and where judgment in such a case is rendered against an obligor in the bond, upon such evidence by the court in lieu of a jury, the Appellate Court will reverse the judgment and dismiss the case without remanding it for a new trial.</p>