
    Osburn Garrett v. Felt and Reed.
    1. Record : clericad error : jury. — If tlie record recite that the jury were sworn to try the issue between the parties, when in fact no issue was joined, it is but a clerical error and will not vitiate the verdict.
    2. Judgment : on verdict without issue good. — A judgment on a verdict without plea by the defendant will not 'be set aside at his instance; it being the same in substance as if a judgment by default had been rendered, and not prejudicial to him.
    IN error from the Circuit Court of Choctaw county. Hon. W. L. Harris, judge.
    
      
      Niles and Irving, for plaintiff in error.
    
      JD. Mayes, for defendant in error.
   Fishee,, J.,

delivered the opinion of the court.

The only error alleged to exist in the record, is that the jury were sworn to try the issue joined between the parties, when in fact no issue appears to have been joined. This is at most but a clerical error. It is not the practice except in a few specified cases to swear the jury to try the issue joined in a particular case. They are sworn to try all issues, and to execute all writs of inquiry which may be submitted to them during the week for which they have been summoned; and we must therefore presume that the jury were sworn in this manner unless there is a showing by the record to the contrary. The verdict and judgment being in substance the same which the court would have rendered if judgment by default had been entered, the judgment will not be reversed merely for this clerical error. It is not an error to the party’s prejudice, and he cannot therefore complain.

Judgment affirmed.  