
    Michael D. Gittings, survivor, etc. v. Jacob Baker.
    Adversary parties to a suit can not, by contract, require the court to try their cause contrary to the established rules of judicial proceedings, and all contracts made to effect such a purpose, are absolutely void.
    Where parties have agreed, that a suit pending between them shall be decided for plaintiff or defendant, according to the result of another suit pending between them, and where no consideration is alleged to have existed for making the agreement, and no connection is shown by the plea between the two cases, after the termination of such other suit, such agreement shall not furnish a basis for a plea in bar to the pending suit; but it will be held void, being a mere wager.
    Slight- mistakes or omissions in pleading will be cured by judgment; but where the pleading is totally defective, showing on its face that the party can claim no right under it, the judgment will be held erroneous.
    This was a writ of error to the district court of the county of Muskingum.
    The original cause was an action of replevin, commenced before a justice of the peace, and taken by appeal into the court of common pleas.
    In that court, the defendants, whose survivor is the plaintiff in error, filed a plea puis darrein continuance, in which it is alleged, *that after the continuance in the court of common pleas, at the September term, 1848, and before the day of the plea, “ by a certain agreement, then and there made by and between the plaintiff and defendants, the said plaintiff agreed to and with the defendants, that the matters and things in controversy in this case should abide the final decision and judgment of a certain other case in replevin for wheat, then and there pending in said court, between Michael D. Gittings, as plaintiff, and Jacob Baker, defendant, and that if said judgment finally should be in favor of said Baker, tha^ the judgment in this case should bo in his favor; and that if the judgment in said case of replevin for wheat should be in favor of said Michael D. Gittings, that then, and in that case, the judgment in this case should bo in favor of the defendants herein. And the defendants in fact say, that, at the June term, 1849, of the said court, held in and for said county, to wit, on the 2d day of July, 1849, at said county, by the consideration and judgment of the said court, the said Michael D. Gittings recovered a judgment in said replevin ease for wheat above mentioned against said Jacob Baker ; and that afterward, to wit, at the October term, 1849, of the Supremo Court of the State of Ohio, in and for said county, to wit, on the 24th day of October, 1849, at said county, the said last-mentioned cause in replevin for wheat, having been removed to said Supreme Court by writ of error sued out by said plaintiff, by the consideration and judgment of said Supreme Court, the said judgment of said court of common pleas was affirmed, with costs, and tho said cause finally decided and adjudged in favor of saidMichaelD. Gittings,andagainst said Jacob Baker; and said last-mentioned judgment is unreversod and in full force and effect. Whereby, and under and by virtue of said agreement and said judgment, the matters and things in controversy herein were determined in favor of said defendants, and against said plaintiff.” Following the usual offer to verify and prayer for judgment, in the recited part of the plea, is a prayer, “ that the proper inquiry be had into tho right' of property, and right of possession *of the said defendants to the said goods and chattels,” etc.
    To this plea, the plaintiff below (hero defendant) replied; and the cause being tried by a jury, it was found by the verdict, “ that the said plea puis darrein continuance of the said defendants is true;” and “that the right of property in and to tho said goods and chattels in the said declaration specified, was, at the commencement of this suit, in the said defendant,” with the usual assessment of damages. It appears, from the record, that the plaintiff excepted to the charge of the court of common pleas, and moved for a new trial; but his motion was in that court overruled, and judgment was entered on the verdict.
    A writ of error to reverse that judgment was sued out of the Supreme Court for the county of Muskingum; and there were various assignments of error—which, however, need not here bo noticed.
    The Supreme Court in Muskingum county reversed the judgment of the common pleas, holding the latter court to have erred, in giving judgment for the defendant, upon the issue joined upon the plea puis darrein continuance.
    
    This writ of error, directed to the district court of Muskingum county, as tho successor of the late Supreme Court, is to reverse the decision of the last-named tribunal. And it is assigned for error that said court erred in holding that the said plea, puis darrein continuance, was not sufficient in law to sustain the judgment thereon rendered by the court of common pleas.
    
      Charles C. Converse, for plaintiff in error.
    
      Jacob Baker, in person, for defendant.
   Caldwell, J.

It is a well-established rule, that parties .can not by contract change the mode of judicial proceeding. Parties may waive certain rights which are given them in á court of justice ; they may agree that certain facts exist, without other proof of their existence; a party'may waive exception to evidence not technically legal, may waive informalities *in adversary pleading, or may admit, generally, that the issue joined is against him, and suffer judgment without an investigation of the facts. The parties can not, however, make a binding agreement, requiring a controversy to be tried in court out of the ordinary mode of proceeding. The parties can not by agreement require the court to give an effect to a written contract, other than its legal import; they can not by agreement require a case, cognizable only in a court of law, to be tried according to the rules of chancery, or vice versa. No agreement would be valid, that would require the court to change the rules of-evidence, to submit the decision of the facts in a case to a jury of less than twelve men ;’ nor that would require the court to draw other than the legal and natural conclusion from given premises. Any agreement of this kind is totally invalid, the parties having no right to have it carried into effect. Now, what is the character of the contract in this 'case, that is claimed to furnish a good plea in bar to the suit ? The case presented to the court was an action of replevin, and the controversy to be determined, was whether the defendant in the suit had unlawfully detained certain wheat belonging to the plaintiff; the parties agree, not that..the case shall be dismissed on the happening of a certain event, but that the court shall proceed to judgment. The criterion by which the controversy is to be determined, is the result of another suit between the parties, not alleged or shown to have any connection in principle, or any relation to the present case. The only questions presented by the issue made to the jury were, whether such contract had been made, and whether the suit referred to had been determined in favor of the defendant ? Upon the finding of these two questions in the affirmative, the jury were required, as they did, to find that the defendant did not detain the wheat in controversy, and to proceed to assess the value of it, and the court were required to enter up judgment on such finding ; hero the jury and the court are required by the contract of the parties to arrive at a result, by drawing a conclusion from premises, having no legal or reasonable tendency to ^produce such conclusion. I should myself have no hesitancy in saying that this contract is absolutely void, on the ground that it is an unwarrantable interference by the parties with the mode of judicial proceeding. The court, however, not being fully agreed 'on this point, I am not authorized to place the decision upon it. There is another ground upon which the court all agree that this contract is totally void, and could therefore furnish no basis for a plea in bar. As we have already remarked, no connection is alleged to have existed between the former suit, and that which formed the subject-matter of the contract, nor can any such connection be inferred ; no consideration is expressed in the agreement as set forth in the plea, and no consideration can be implied on the contract. It is an agreement without consideration, and in every respect a more wager, and without reference to its intended interference with judicial proceedings would be invalid as a contract.

It is said, however, by the plaintiff in error, that although the pleading majT have been defective, yet, that after judgment, tho court are to presume that the evidence necessary to support the judgment was presented on the trial, and that, therefore, the judgment should not be disturbed. It is true, certain defects in pleading- maybe cured by judgment, where the fact omitted to be alleged, or defectively set forth, must have been proved on the trial as a necessary part of the plaintiff’s case; it will be presumed that such proof was given, and the reviewing court will not disturb the judgment. This principle has its limit; otherwise no form of pleading, nor any pleading at all, would be necessary after judgment; for the presumption, that the court had heard tho necessary evidence would be just as strong in such a case as any other Without attempting to define the limits of this rule, we would say that it has no application to such a case as this. The rule has been adopted for the purpose of preventing the mischief that might arise from permitting parties, after judgment, to take advantage of mistakes or slips in pleading, which they have not taken advantage of at an earlier stage *of the proceeding. In this instance, we would have to presume that the court had evidence of a contract, both in its terms and legal effect, altogether different from the one relied on by the pleading; in othervyords, that a case had been made out by the evidence, the substantial part of which was not set forth in the pleading. This, as we think, would bo inadmissible. It is said, however, that the Supreme Court erred in reversing tho judgment of the common pleas, the error lor which the judgment was reversed not being specifically assigned. It is true, there is no specific assignment of this error; there is, however, a general assignment that covers it. It is assigned as error, that the court gave judgment for the defendant, when the law required the judgment to be given for the plaintiff. The court might have required the error to be definitely pointed out before they would act; but the error existing on the record, we can not say that they erred, although they took notice of an error not definitely assigned. ¥e think the Supreme Court decided correctly in reversing the judgment of the court of common pleas; the judgment of reversal will therefore he affirmed.  