Good v. Town of Chester

Brannon, Judge:

Allie R. Good sued the town of Chester for damage done her lot from water and mud cast upon it from a street of the town, and recovered a verdict and judgment. The action was trespass on the case.

The record shows no plea of any kind, no issue joined. It shows that the jury were sworn. Sworn to do what? The record does not answer. It does not say the jury was sworn to try the issue. Had there been a plea and issue, that word “sworn” would have been sufficient?. But no plea or issue appears. It is very old law that there must be an-issue for a jury trial. That law seems to have been utterly disregarded in this case. In Ruffner v. Hill, 21 W. Va. 152 , we find it held that if a jury be sworn to try the issue joined where no issue had been joined and no plea filed, “judgment will for such reason only be reversed by the appellate court.” There the record stated that the jury was sworn to try the issue, and yet that was held not sufficient. The record in this case does not even go that far. This is repeated in State v. County Court, on page 678 of 47 W. Va. In Stale v. Douglas, 20 W. Va. 770 , it is held that judgment on a verdict in either a civil or criminal case will be reversed if the record shows there was no issue. See the many authorities cited in that case for the proposition. The record must show an issue. Stevens v. Freidman, 53 W. Va. 79 .

Therefore, we must reverse the judgment, set aside the verdict and grant a new trial. • Reversed.