Beasey v. High

72 N.E. 181, 33 Ind. App. 689, 1904 Ind. App. LEXIS 261

• Court: Indiana Court of Appeals
• Decided: October 28, 1904
• Docket: No. 5,068
• Status: Published

Opinion

Black, C. J.

By his complaint of one paragraph the appellee sought to quiet his title to certain real estate. The appellants answered in two paragraphs, the second being the general denial. The appellee’s demurrer to the first paragraph was sustained. At a subsequent day of the term the appellants withdrew their second paragraph of answer and refused to plead further, electing to stand upon the ruling of the court in sustaining the demurrer to their first paragraph of answer; and this ruling is assigned as error.

In such an action the defendant is permitted to give in evidence, under his answer of denial, every defense to the action that he may have, either legal or equitable. §§1067, 1082, 1083 Burns 1901; Graham v. Graham, 55 Ind. 23.

There is no available error in sustaining a demurrer to a special paragraph of answer, though a good defense be shown thereby, in such a case, or in sustaining a motion to strike out such paragraph, where at the time of such ruling there remains in the record an answer of general denial. West v. West, 89 Ind. 529; Eve v. Louis, 91 Ind. 457; O’Donahue v. Creager, 117 Ind. 372; Watson v. Lecklider, 147 Ind. 395; Sharpe v. Dillman, 77 Ind. 280.

The error, if any, in sustaining the demurrer being harmless at the time of such ruling, the appellants could not convert the ruling into an available error by withdrawing the general denial at a subsequent stage of the case. Cincinnati, etc., R. Co. v. Smith, 127 Ind. 461; Smith v. Pinnell, 143 Ind. 485; Wickwire v. Town of Angola, 4 Ind. App. 253; Berkey v. City of Elkhart, 13 Ind. App. 314.

Judgment affirmed.