48 Ind. 172 | Ind. | 1874
Action by the appellee against the appellant and others. Before final judgment, the action was dismissed as to all the defendants except the appellant. The complaint, as finally amended, was in two paragraphs. The defendants demurred to the first paragraph of the complaint in the form following:
“ The defendants demur to the first ground of complaint, upon the ground that the same does not state facts sufficient to constitute a defence.”
They demurred to the second paragraph in the following form:
“And defendants demur to the second ground of action, upon the ground that said second ground of action does not state facts sufficient to constitute a cause of action.”
The clerk’s entry states that the court overruled “the demurrer of the defendants,” etc. It is assigned as error, “that the court erred in overruling the demurrer of the appellant to the last amended complaint of the appellee.”
The author of the demurrers in this case has shown himself quite independent of forms and precedents.
The court appears to have overruled one of the demurrers, but which one does not appear. If it was the first one, the ruling was clearly correct. It states that the first ground of complaint does not state facts sufficient to constitute a “ defence.” This is no ground for demurring to a complaint or a paragraph of a complaint. 2 G. & H. 77, sec. 50. . What are we to understandby a “ground of complaint?” Is it the equivalent of cause of action or paragraph of the complaint ? As one of the demurrers was clearly bad, and as the court appears to have overruled but one, and as the overruling of but one is assigned as error, we shall not inquire whether the second demurrer was good or not,- but will indulge the presumption that the ruling related to the first demurrer. We do not wish to encourage so wide a departure from approved
The judgment is affirmed, with five per cent, damages and ■costs.