
    *Rowans v. Givens.
    July Term, 1853,
    Lewisburg.
    Writ of Right — No Plea Filed — Effect of Verdict. — In a writ of right, the failure to file a plea is error not cured by a verdict in favor of the tenant.
    This was a writ of right in the Circuit court of Monroe county by William and Charles Rowan against David G. Givens. The demandants filed a count in the form prescribed by the act of assembly; but there was no plea, or joinder of issue in the cause. In this condition of the pleadings the cause was tried, and there was a verdict and judgment for the tenant. The demand-ants having taken exceptions to rulings of the court in the progress of the trial, obtained a supersedeas to the judgment, from this court. This court did not notice the questions involved in the exceptions, and it is therefore unnecessarj* to state them.
    N. Harrison, for the appellants.
    Caperton, for the appellee.
    
      
      Pleading and Practice — Nonjoinder of Issue — Effect.— No verdict can properly be rendered, or judgment entered thereon, unless issue shall have first been joined; and, if it be done, such verdict or judgment will, for this reason alone, be set aside, for the statute of jeofails does not cure the nonjoinder or want of issue altogether.
      The principal case was cited for this propositioh in Preston v. The Salem Imp. Co., 91 Va. 585, 22 S. E. Rep. 486; Gallatin v. Haywood, 4 W. Va. 2 (writ of right); High v. Peerce, 9 W. Va. 294; State v. Douglass, 20 W. Va. 776; Ruffner v. Hill, 21 W. Va. 159; Brown v. Cunningham, 23 W. Va. 111; Hickman v. Baltimore & Ohio R. R. Co., 30 W. Va. 305, 4 S. E. Rep. 659; Baltimore & Ohio R. R. Co. v. Hickman, 30 W. Va. 315, 7 S. E. Rep. 460 (dissenting opinion of wood, J.).
      See also, in accord, Stevens v. Taliaferro, 1 Wash. 155; Kerr v. Dixon, 2 Call 379; Grymes v. Pendleton, 4 Call 130; Taylors v. Huston, 2 H. & M. 161 (writ of right); Wilkinson v. Bennett, 3 Munf. 314; Totty v. Donald, 4 Munf. 430; Sydnor v. Burke, 4 Rand. 162; M’Million v. Dobbins, 9 Leigh 422; Petty v. Frick Co., 86 Va. 501, 10 S. E. Rep. 886; Johnson v. Fry, 88 Va. 695, 12 S. E. Rep. 973; Baltimore & Ohio R. R. Co. v. Gettle, 3 W. Va. 376, 384; Baltimore & Ohio R. R. Co. v. Christie, 5 W. Va. 325; Baltimore & Ohio R. R. Co. v. Faulkner, 4 W. Va. 180; State v. Conkle, 16 W. Va. 736.
      As to the misjoinder of issue, see foot-note to South-side R. R. Co. v. Daniel, 20 Gratt. 344, where the subject is dealt with at some length.
      See principal case distinguished in Bartley v. McKinney, 28 Gratt. 750.
    
   SAMUEES, J.

The ‘ ‘act reforming the method of proceeding in writs of right,” 1 Rev. Code 463, directs that the count, plea and replication, respectively, shall be in the form prescribed by that act, or in a form of the same effect. This court in Beverly v. Fogg, 1 Call 421, (Tate’s edition,) decided that it was error not cured by verdict, to omit from the count the boundaries of the land demanded, which the statute required to be inserted. In Taylor v. Huston, 2 Hen. & Munf. 161, it was decided that the omission to file a plea in the form, or to the effect of that prescribed by the act of ^'assembly, was likewise error, not cured by verdict; and that the mere entrj ‘ ‘usual plea and time to reply, ’ ’ and the entry of the word “joinder” at a subsequent day, would not sustain a judgment for the tenant. Apart from the rules of practice specifically provided for the writ of right, the general rules applying to all actions will not sustain a judgment given upon a verdict rendered as upon the trial of an issue, when no issue had been joined. McMillion v. Dobbins, 9 Leigh 422; Sydnor v. Burke et ux., 4 Rand. 161.

In the case before us no plea whatever was entered, nor any mention made of a plea ; yet the jury was impaneled as for the trial of the mise joined upon the mere right, and rendered a verdict for the tenant, on which a judgment was given accordingly. Adhering to the cases cited, I am of opinion to reverse the judgment; to set aside all proceedings had subsequently to filing the count; and to remand the cause to be proceeded in from that point.

The other judges concurred in the opinion of Samuels, J.

Judgment reversed.  