Gowen v. Gilson

41 N.E. 594, 142 Ind. 328, 1895 Ind. LEXIS 176

Opinion

Hackney, J.

The only assignment of error in this case is upon the action of the lower court in sustaining the appellees’ demurrer to the appellants’ complaint. The record discloses that after the ruling upon demurrer to the complaint the appellants filed an amended complaint upon which further steps were taken. That the filing of an amended pleading takes out of the record the original pleading and waives any error in the ruling upon such original pleading is well settled. Kennedy v. Anderson, 98 Ind. 151; Conley v. Dibber, 91 Ind. 413 ; State, ex rel., v. Hay, 88 Ind. 274; Berghoff v. McDonald, 87 Ind. 549; Eshelman v. Snyder, 82 Ind. 498 ; Miles v. Buchanan, 36 Ind. 490 ; Johnson v. Conklin, 119 Ind. 109 ; Earp v. Commissioners, etc., 36 Ind. 470 ; Aiken v. Bruen, 21 Ind. 137; Patrick v. Jones, 21 Ind. 249; Elliott App. Proced., sections 595, 683. The record presenting no available error, the judgment of the circuit court is affirmed;

Filed October 18, 1895.