Slauter v. Hollowell , 90 Ind. 286 ( 1882 )

Bicknell, C. C.

— Slauter filed a complaint for a review of a judgment obtained against him by Hollowell in the Warren Circuit Court.

The complaint alleged error of law appearing in the proceedings. A demurrer to the complaint, for want of sufficient facts, was sustained; Slauter excepted and appealed.

.The only error assigned is that the court erred in sustaining said demurrer.

In the original action, the appellant filed a demurrer to the complaint, for want of sufficient facts, and said demurrer was overruled; the appellant then filed an answer in three paragraphs, to wit:

1st. The general denial.

2d. Payment.

3d. A verified plea in abatement, alleging that appellant was not a resident of Warren county, but had his residence in Fountain county, Indiana; wherefore the court had no jurisdiction of his person.

A demurrer to this plea in abatement was sustained, and that ruling is the alleged error of law upon which the complaint for review is founded.

The appellant, having filed a demurrer in the court below, could not afterwards plead in abatement want of jurisdiction over tlie person; a demurrer is a full appearance to the action, and admits the jurisdiction of the court over the person. Kegg v. Welden, 10 Ind. 550; Knight v. Low, 15 Ind. 374; City of Crawfordsville v. Hays, 42 Ind. 200; Louisville, etc., R. W. Co. v. Nicholson, 60 Ind. 158. The ruling of the court below upon the demurrer to the plea in abatement was not erroneous, and, therefore, the. demurrer to the complaint forréview was rightly sustained. The judgment of the court below ought to be affirmed.

Per Curiam. — It is therefore ordered by the court, upon-the foregoing opinion, tha't the judgment of the court below be and the same is hereby in all things affirmed, at the costs-of the appellant.