State ex rel. Cobb v. Scott

59 N.E. 1071, 26 Ind. App. 486, 1901 Ind. App. LEXIS 286

Opinion

Black, J.

The complaint of the appellant against the appellees was-filed on the 8th of October, 1897, and on the 4th of December, 1897, an amended complaint was filed by the appellant consisting of five paragraphs.

In the assignment of errors there are three specifications, as follows: “(1) The Boone Circuit Court erred in overruling the separate demurrer of Charles W. Scott to each paragraph of the appellant’s complaint; (2) the Boone Circuit Court erred in overruling the joint demurrer of all the appellees to each paragraph of the appellant’s complaint; (3) the Boone Circuit Court erred in overruling the separate demurrer of all the defendants except Charles W. Scott to each paragraph of the appellant’s complaint.” The clerk’s certificate pertains specially to particular papers and the entries relating thereto.

It does not appear whether or not there was any demurrer to the complaint before the amended complaint was filed. On the 6th of January, 1898, three demurrers to the complaint were filed, one by all the defendants, another by the defendant Charles W. Scott, and the third by the defendants except- Charles W. Scott. All of these demurrers were sustained, and the record does not show that any demurrer was overruled, as stated in the assignment of errors. Therefore the pleading which constitutes the appellant’s complaint in this court does not present for review any action of the court below shown by the record before us. An error assigned must be injurious to the party assigning it and must be tried by the record. Williams v. Riley, 88 Ind. 290; Ketcham v. Barbour, 102 Ind. 576; Popijoy v. Miller, 133 Ind. 19; Evansville, etc., R. Co. v. Lavender, 7 Ind. App. 655; Cleland v. Applegate, 8 Ind. App. 499; Ewbank’s Manual, §137.

Judgment affirmed.