Huffman v. McDaniel

1 Or. 259 | Or. | 1859

Per Wait, C. J.

This cause is brought here by writ of error. The errors assigned are:

1st. “ The court erred in sustaining the demurrer of the ■said Larkin McDaniel to the first answer of the said Huffman ; that the date in the contract can be supplied at law.”

2d.' “ The complaint of the said Larkin McDaniel is insufficient in law for him to have and maintain this action •against the said Jacob Huffman; that the complaint claims two thousand dollars damages for the detention of the land described in the complaint, without specifying the time the said Huffman detained the land in dispute, or the value of the rent, or the value of the land.”

3d. “ The court erred in sustaining the second demurrer of the plaintiff to the second answer of defendant.”

It is true that the court below sustained the demurrer to the first answer of the defendant, but any error so committed was waived by the interposition of an amended answer. When an answer is demurred to, and the demurrer sustained, if leave is obtained therefor, and an amended answer is filed, all right to insist upon error in the sustaining of such demurrer is waived. . A party may demur to a pleading, and he may stand by his demurrer, and if it is well taken this court will give him whatever he was entitled to receive from the court below; but if he answer over, he waives all benefit of his demurrer; he has his election to stand by his demurrer or to answer over, and, having taken his election, he is bound by it. The second matter assigned as error is sufficiently answered by saying that the record, as it comes before us, does not show that any “damages” are adjudged to the plaintiff. Damages were awarded, but they were afterwards remitted, and the judgment, at the time the writ of error was sued out, permitted no damages to the plaintiff.

The third matter assigned as error presents the main question arising in this case: Did the court err in sustaining the second demurrer of the plaintiff ? One point in the demurrer was, “ It is not alleged in said answer, that the sums therein pretended to have been expended by the defendant in extinguishing the titles of Badger and Collier were so expended within the time limited by the lease. By giving the utmost latitude of construction which can be claimed as the life of a lease,” from- day of-- A. D. 1856, for and during, and until the full end and term of eighteen months from the last day of the year “ 1856.” Suit was instituted in August, 1858, and the answer does not show that the sums, or either of the sums therein alleged to have been paid in extinguishing the titles of Badger and Collier, were so paid within the eighteen months subsequent to the last day of the year 1856, or at any other particular time. Hence, the demurrer was properly sustained, and the judgment of the court below should be and is affirmed.