UNDERWOOD v. MARTIN

Where the Supreme Court, upon overruling a demurrer, pronounces judgment that the plaintiff recover his damages, and remands the cause to ascertain the damages, the Circuit Court cannot permit the defendant to plead to the merits, but must execute the inquiry.

OVERTON, J. delivered the following opinion of the Court. —

The record shows that heretofore Underwood was sued by Martin; that he demurred to the declaration; that the Circuit Court had sustained the demurrer, from which Martin had appealed to this court, where the judgment was reversed, and judgment pronounced that Martin should recover his damages; and, to ascertain those damages by a jury, the cause had been remanded to the Circuit Court; that when the cause appeared a second time in the Circuit Court Underwood moved that court to be permitted to plead a plea of tender, which was refused him, and now the only question is, whether the Circuit Court was correct in refusing to receive this plea?

No doubt is entertained but this decision was correct. The Circuit Court could not receive the plea, without reversing the decision of this court, which was beyond its power; its only business was to ascertain the amount of the damages by a jury, and then pronounce a final judgment in the cause. This it has done; therefore the judgment ought to be affirmed.