| Ind. | Jan 25, 1860
Complaint, averring that the cars, &c., of appellant, killed a horse of appellee, of the value, &c.
There is no averment that the road was not fenced, nor of carelessness.
A demurrer was overruled to the complaint. This was error. The Indianapolis and Cincinnati Railroad Co. v. Wharton, 13 Ind. 509" date_filed="1859-11-15" court="Ind." case_name="Indianapolis & Cincinnati Railroad v. Wharton">13 Ind. 509.
There was an answer of four paragraphs, one of which averred that the road was fenced, &c. Reply, in denial.
It is now said that the error, in overruling the demurrer, should not reverse the judgment, because the merits were tried under the issues made.
It is not necessary to say whether a case might be presented, where we would decide that an error, similar to the one here committed, should not be considered of sufficient importance to reverse, &c., for the reason here given; because the evidence, in this case, is not in the record, and we do not, therefore, know that any proof was made in reference to the material allegations omitted in the complaint.
The judgment is reversed, with costs. Cause remanded, &e.