Colorado Central R. R. v. Blake

3 Colo. 417

Opinion

Elbert, J.

It is not necessary to go into the question of the sufficiency of the special pleas. The defense sought to be interposed by them was equally available under the general issue. 1 Chitty’s Pleadings, 491 (14th Am. ed.); Gould’s Plead. 307-8 (4th ed.); 1 Tidd’s Practice, 651*.

The action of the court below in sustaining the demurrer could not, therefore, have prejudiced the defendant, and is no ground of reversal. Though a court erroneously sustains a demurrer to a special plea, yet if under another plea the same defense is available, the error in sustaining the demurrer is no ground of reversal. This is the doctrine of the cases of Marr v. Wetzel, and Brown v. The People, decided at the February term, 1876, and is supported by the current of authority. Ill. Cent. R. R. Co. v. Johnson, 34 Ill. 393; Varden v. Ellis, 18 Ark. 355; Chambers Co. v. Clews, 21 Wall. 317.

The ruling of the court did not deprive the defendant of its defense, nor is there any thing in the record to show but what it was given in evidence under the general issue. Nothing appearing to the contrary, it has been held that such is the presumption. Warren v. Crane, 20 Ill. 151; Ill. Cent. R. R. Co. v. Johnson, 34 id. 317.

The judgment is affirmed with costs.

Affirmed.