Bessler v. Laughlin , 38 Ind. App. 14 ( 1906 )

Per Curiam.

The complaint is in three paragraphs. A demurrer was addressed to it in the following language: “Come now the defendants and each severally and separately demurs to each paragraph of the complaint severally and separately, for the reason that neither of said paragraphs state facts sufficient to constitute a cause of action against the defendants or either of them.” The ruling of the court upon the demurrer is as follows: “The court, also being fully advised as to the demurrer to each paragraph of complaint herein, overrules the same, to which ruling the defendants except.”

In Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460, the Supreme Court said: “There were seven paragraphs of complaint and appellant demurred to each of them. Its demurrer was overruled and it reserved a general exception to the ruling. Although appellant sought on appeal to question severally said ruling as to each of said paragraphs, yet as the exception was in gross we are compelled to hold that such assignments of error present no question for our consideration.” The authority of the case cited precludes the consideration of the separate paragraphs of the complaint herein. Two of the judges of the second division of the Appellate Court being of the opinion that the ruling precedent of the Supreme Court in the case of Southern Ind. R. Co. v. Harrell, supra, is erroneous, for that reason this cause is transferred to the Supreme Court under section ten, subdivision one, of the act approved March 12, 1901 (Acts 1901, p. 565, §1337] Burns 1901).

Comstock, J.

I do not concur with my associates in the order of transfer. That part of the opinion in Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460, referred to, only announces a general rule that an exception in gross to a several ruling can not avail as a several exception. The opinion does not set out the language of the exception nor of the ruling, and it does not necessarily, apply to the question raised in the case at bar.