39 Ind. 245 | Ind. | 1872
This was an action brought by the appellee against Jewett and the other appellants, as his securities, on -his bond as treasurer of the said draining company. The breaches charge that he failed to render accounts of the money which came to his handsor to pay the same over to the company or to his successor in office, on demand, and has converted and applied the same to his own use. There was an answer of several- paragraphs filed, some of the paragraphs by all the defendants, and some by the sureties alone. A demurrer was sustained to the fourth and sixth paragraphs; and there was a reply, by denial, to the second, third, and fifth. A trial by jury was had, and there was a verdict and judgment for the plaintiff. The errors assigned are, the sustaining of the demurrer to the fourth and sixth paragraphs of the answer.
The record is in a confused condition. But there is one point, arising under the assignments of error, which is presented by counsel for the appellants, and which we think is well taken. The demurrer to the fifth, sixth, and amended second paragraph of the answer, was as follows:
“The plaintiff demurs to the fifth and sixth paragraphs of defendants’ answer, and to the second amended paragraph of answer. Gridley & Gregory, Att'ys."
The fifth paragraph of the answer is the general denial, and there is no objection to it. But the court sustained the demurrer to the sixth paragraph of the answer. Now, it is a rule of pleading, that where, the demurrer is to several paragraphs of a pleading jointly, and any one of such paragraphs is good, the demurrer must be overruled as to all. Urton v. Luckey, 17 Ind. 213.
But this demurrer assigned no cause whatever, and for this reason- should have been overruled as to all the paragraphs to which it was filed. 2 G. & H. 77, sec. 50, clause 6.
The judgment is reversed, ■ with costs, and the cause remanded, with instructions to overrule the demurrer.