#### George Brazzle and James Hawkins, Plaintiffs in Error, v. David Usher, Defendant in Error.

ERROR TO GALLATIN.

If parties appear and go to trial without a plea being put in, it is such an irregularity as will be cured, after verdict, by the statute of amendments.

Usher brought an action of trespass, vi et armis, against Brazzle and Hawkins, in the Gallatin circuit court, and recovered a verdict and judgment against them. To reverse which judgment, they sued out a writ of error, and assigned for error, that there was no plea filed in the cause, and that a trial was had without a plea. It appears from the record, that the parties, by their attorneys, were present at the trial, and made no objections to the proceedings as they were.

Opinion of the Court. The appearance of the parties cured the defect, if any, arising from the failure to file a plea. The statute of amendments will apply in this case, to cure the irregularity. The judgment of the court below must be affirmed. (1)

Judgment affirmed.

(1)

If one of several pleas be not answered, and the parties go to trial without any objection on the part of the defendant, the irregularity is cured by the verdict. Ross v. Redick, 1 Scam., 74. Armstrong v. Mock, 17 Ill., 166. Kelsey v. Lamb, 21 Ill., 559. Stumps v. Kelley, 22 Ill., 140. Puterbaugh v. Elliott et al., id. 157.

A declaration contained two counts, upon one of which there was an immaterial issue, and the other was wholly unanswered. After judgment for plaintiff the defendant assigned for error, that judgment was entered on the immaterial issue, and that the second count was unanswered. Upon these assignments of error the court said: “ Will the non-joinder of an issue on the second count, or the immaterial issue, justify the reversal of the judgment for such causes 1 We think not: the statute of amendments and jeofails has provided against any error arising from such causes, and the defendant can not now assign either for error.” Graham v. Dixon et al., 3 Scam., 118. The grounds upon which this decision would seem to be based are—that going to trial without a plea was an error in favor of the defendant, and of which he could not afterwards complain. Kitchell v. Bratton, 1 Scam., 301. Arenz v. Reihle et al., id., 340. Bailey v. Campbell, id., 47. Clemson v. State Bank, id., 45. Thorn v. Watson et al., 5 Gilm., 27. On the count which was unanswered the plaintiff might have taken judgment ,by default, and the defendant was not injured by his not doing so.

In the following cases defects have been held to be cured by verdict. State Bank v. Batty, 4 Scam., 201. Hamilton et al. v. Cook County, id., 527. Selby v. Hutchinson, adm’r, 4 Gilm., 327. Sullivan v. Dollins, 13 Ill., 88. Burst v. Wayne, id., 599. Spencer v. Langdon, 21 Ill., 192. Loomis v. Riley, 24 Ill., 307.