
    McNasser v. Sherry.
    
      Practice—upon overruliny a demurrer. Upon overruling a demurrer to a declaration if the defendant does not plead, further judgment of nihil dieit should he entered and a jury should he impaneled to assess damages. In such case it is error to swear the jury to try the issue joined.
    
      Appeal from District Court, Arapahoe County.
    
    Mr. Amos Steck, for appellant.
    
      Mr. Gr. W. Perkihs, for appellee.
   Hardihg, 0. J.

This is an appeal from the judgment of the district court of Arapahoe county.

There is but a single question for us to decide. At the August term, 1862, of said court, the appellee recovered judgment in said district court for the sum of $296.75 in damages and costs, and this appeal is prosecuted to this court to reverse said judgment.

It appears from the record that a demurrer had been filed by defendant in the court below, which was overruled, 'to which ruling an exception was taken. That afterward a jury was impaneled and sworn, well and truly to try the issue joined, etc. These facts are made apparent to us from the bill of exceptions which is contained in the record. After the finding of the verdict by the jury a motion was made to set aside the verdict on the ground that the jury had been improperly sworn. It is clear that this fact was brought to the mind of the court, and yet, disregarding the motion, judgment was rendered on the verdict.

That is the error which is presented to us for our determination. There might have been another objection urged, but we will content ourselves by passing on the one before us.

When the jury was sworn to well and truly try the issue joined, etc., there was no issue joined in the case then on hearing. Upon the overruling of the demurrer, and the defendant failing to file a plea to the action, the proper practice would have been to have entered a judgment of nihil dicit, and then have impaneled a jury to assess damages, and not to well and truly try the issue joined, when no issue had been joined in the pleadings.

Per curiam.

The judgment of the district court is reversed, with costs. Case remanded for further proceedings.

Reversed.  