The record in this case certainly presents a series of anomalies, and the questions for the consideration of the Court are embraced in the enquiries, how far consent of parties can remedy error; what defects in pleading are cured by vei-dict, and whether the verdict and judgment of the Court below have been rendered in compliance with the well settled rules of law. Although a Court of error will go far to sustain a judgment of a Court which tried the cause, when upon a view of the whole case it comes to the conclusion that [substantial justice has been done between the parties ; yet still, there are certain fundamental rules governing legal proceedings, which cannot be departed from, without producing great confusion and evil results. There can be no doubt but that the Court below erred, as alleged in the assignment of errors, in pronouncing a judgment by default, whilst the record shows that pleas were in and filed by the defendant.
The record states that no plea was filed by defendant, upon which the judgment by default was entered. As a general rule, the record is to be taken as true, and nothing is be averred against the allega*194tions contained in it, but we must examine the whole record; and it would be carrying the above axioms to an absurd extent, if after its inspection, we should say, ■ the judgment by default was correctly rendered, because the record said there were no pleas filed, when in fact two pleas stand in bold relief, and undisposed of. It would seem far more consonant with reason to conclude, that they were overlooked, and the judgment pronounced through inadvertance, than to take for granted, even a record averment so utterly at variance with the strongest evidence of our perceptions.
There is nothing in the record to show, that a motion was made by the defendant in the Court below, to set aside the judgment by default thus irregularly granted, as might have been done; nor does it appear that the plaintiffs availed themselves of any legal rights growing out of it; so that it is to be inferred from the further proceeding of the cause, that this judgment was waived by both parties, perhaps considered as struck out and a nullity — by the defendants, by not moving as above — by the plaintiffs,, by pleading in disregard of it. Without moving to have the judgment set aside, the latter reply to the plea of non damnificatus filed by defendants and demur to that of nil dehit. The defendants do not rejoin to the replication, nor join in the demurrer; but “ by consent of parties it is agreed that the two cases shall be submitted to the samé jury.” The cases referred to are the one at bar and another between the same parties, as shown by the record.
The consent alluded to, seems nót to have extended further than that the same jury were to bring in separate verdicts in each case, and not as contended for by counsel, that the cases should be consolidated, and one verdict be rendered for the two cases.
The Court can only be guided by the record as to the version to be given to this submission, and as there is nothing contained in it that conveys the idea of consolidation, we must take the words as we .find them. If the consent went to the extent contended by the counsel for appellee, a different decision as to the verdict first rendered, might be arrived at, as, consents may take away error ; and guided by this rule, the court is constrained to overlook the irregularity of the judgment by default.
With the views of the submission, as above expressed, the Court is of opinion, that separate and independent verdicts should have been rendered in each case. Here the Court might rest and re*195mand the case to the Court below for correction of its proceedings, but it may not be inappropriate to diseuss some other points raised •in the cause.
It is contended by the appellee that the record shows that there were issues before the jury and issues joined ; but we ■ can discern nothing showing such to be the (act, further than that after the submission of the case, certain persons were elected, tried and sworn to speak the truth upon the issues joined.
The pleadings certainly exhibit no issue either of fact or of law. “ As the object of all pleading or judicial allegation (says Mr. Stephens,) is to ascertain the subject for decision, &c. the main object of that system of pleading established in the Common Law of England, is to ascertain it by the production of an issue.”
The counsel for appellee insists that by the statute of jeofails of our State, the error, if any existed, is cured by the verdict; but that does not apply where there has been no issue or non-joinder. An immaterial issue is not aided at Common Law, or by statute. (Buller’s Ni. Pr. 321 — 2d Saunders, 319. In such cases Courts will grant a repleader) — and Green J. in the case of Truss vs. Old, 6 Ran. 560, remarks, “ that the statute of jeofails gives the effect of curing errors, only where a verdict is given without exception.”
Although the record states the jury were sworn to try the issues joined, that cannot remove the irregularity of the verdief, or prove that issues really existed.
In Sydner against Burke and wife, 4 Ran. 161, we see that th^ act of jeofails will not sustain a verdict and judgment in a case in which the record states that the jury were sworn to try the issue joined, but does not show that any plea was filed by defendant, upon which issue could have been joined.
The case of Stevens vs. Thornton’s adm’rs. .1 Wash. R. 156, is in point. In that case there was an entry upon the record after the replication, concluding with a verification, to which there was no rejoinder, that “ issue was thereupon joined between the parties.” The entry was deemed not sufficient, because in fact, there appeared no issue.
With these views, and there having been no issue properly made, up for submission to the jury, we think the error well assigned by appellant.
It appears that there were motions for a new trial and in arrest *196of judgment, and these remained, so far as appears by the record, undisposed of. A presumption may arise, that these motions were refused, but it will not be necessary to advert further to the assignment of errors in relation to them, inasmuch as the first verdict has been declared irregular. And so in- relation to the second verdict, for there appears to have been two verdicts in one cause, the Court feels no hesitation in declaring that it should be set aside. It seems that after the rendition of the first verdict, pn Saturday, and their discharge, the jury were recalled by the Court on the ensuing Wednesday, for the purpose of apportioning the damages by them re« turned in their verdict. After their discharge, the Court below erred in again assembling them to put their verdict in form, as this should have been done before their discharge, and a venire de novo should have been the proper order. — After a jury have returned their verdict, have been discharged and separated, they cannot be recalled to alter or amend it. Sergeant against the State, 11 Ohio R. 472.
The cases cited by appellee do not refer to cases where the jury had been discharged. The strongest one, that of Winslow against Draper, 8 Pick. 170, was this. . The jury had retired to consult on their verdict on Saturday afternoon, and had permission from the Court to. separate as soon as they had made up their verdict. On the following Monday morning, they rendered in an imperfect verdict, which the Court made them correct, as they found a substantial verdict on the merits, and it was then put in proper form.
' It would be superfluous to dilate upon the instructions as prayed for by the defendants, in the Court below, though it is very clear that the Court should have instructed the jury, that they were not to assess the damages in each case pro rata, according to amount, but as to the evidence in each case independent of the other.
As contended for by the appellee, the Court is not to be understood as dissenting from the doctrine, that a Court will not examine the propriety of amendments of the Court below, when these amendments are within the power of the Court, given it either by Common Law or statute, amendments generally being matter of discretion for the Court. In this case, the error seems to have been the not making suitable amendments. But the Court of errors should certainly have all the proceedings of the subordinate Court before it, so that from a view of the pleadings, the process, continuances. *197the finding of a jury upon a proper issue and the judgment — (for without them a Court would be groping in the dark and find great difficulty) — they might come to a decision.
With these views, we think the judgment of the Court below must be reversed; which is accordingly ordered, and that this cause be remanded to Leon Circuit Court for further proceedings to be had therein, in accordance with the views contained in this opinion.