Dawson v. Eads

39 N.E. 919, 140 Ind. 208, 1895 Ind. LEXIS 18

• Court: Indiana Supreme Court
• Decided: February 21, 1895
• Docket: No. 17,256
• Status: Published

Opinion

Monks, J.

— This action was brought by appellant against appellee to recover damages for slander. The complaint was in five paragraphs; appellee filed his answer in two paragraphs, the first of which was a general denial, and the second a plea of justification. To the second paragraph of answer appellant filed a demurrer which was overruled, and an exception taken. The cause was tried by a jury which returned a verdict upon which judgment was rendered for appellee. The only error assigned is that the court below erred in overruling the demurrer to the second paragraph of answer.

It is earnestly insisted by the appellant that the second paragraph of answer is wholly insufficient, and that the demurrer thereto ought to have been sustained. Counsel for appellee urge that the demurrer is wholly insufficient, in this, that it does not allege one of the statutory causes, and for that reason presents no question for the consideration of this court.

Filed Feb. 21, 1895.

The demurrer to the second paragraph of answer was for the following cause:

“It does not state facts sufficient to make a good answer to the complaint.”

Section 346, R. S. 1881 (section 349, R. S. 1894), provides that “when the facts stated in any paragraph of answer are not sufficient to constitute a cause of defense the plaintiff may demur to it under the rules prescribed for demurring to a complaint.”

Such objection to an answer, unless taken by demurrer, is waived. R. S. 1881, sections 339, 343 (R. S. 1894, sections 342, 346).

It was held by this court in Thomas v. Goodwine, 88 Ind. 458, that a demurrer, in the same words as the one in this case, presented no question; that case has been frequently cited, and approved on this point. Campbell v. Campbell, 121 Ind. 178.

We therefore sustain the point made by appellee against the demurrer. The same presents no question upon the answer for the determination of this court.

The judgment is affirmed.