Lake Erie & Western Railroad v. Pettijohn

36 N.E. 429, 9 Ind. App. 695, 1894 Ind. App. LEXIS 95

Opinion

Lotz, J.

The appellee brought this action against the appellant to recover damages caused by fire. He stated his cause of action in two paragraphs of complaint. A demurrer for want of facts was overruled to each. The cause was put at issue and tried by the court. The court, at request of the appellant, made a special finding of the facts, stated conclusions of law, and rendered judgment in favor of appellee.

Filed Feb. 14, 1894.

It appears affirmatively, from the record,. that the finding and judgment are based upon the first paragraph of the complaint. The overruling of the demurrer to the first paragraph is one of the errors assigned.

This paragraph, in all of its essential respects, exceptas to the name of the plaintiff, is the same as the first paragraph in the case of Lake Erie, etc., R. R. Co. v. Miller, 9 Ind. App. 192.

Upon the authority of that case, this cause is reversed, at the costs of the appellee, with instructions to sustain the demurrer to the first, paragraph of complaint.