Eubank v. Whittaker

Wright, J¹.

Defendant’s demurrer to the original'petition was sustained, and plaintiff obtained leave to, and did amend. To this amended petition the defendant again demurred, which was likewise sustained. And thereupon, according to the record, “defendant by his counsel asked leave to file his answer, and leave is granted, and defendant filed his answer; whereupon the cause is submitted to the court upon the pleadings, and all things being fully beard and considered, it is considered that plaintiff have nothing by her suit, and that the defendant recover his costs,” &e. Plaintiff appeals and assigns for error, the ruling of the court sustaining the last demurrer.

We are of the opinion that the case is in such a condition that the question made by the demurrer cannot be determined by us. The answer and subsequent hearing upon the pleadings, rendered the ruling upon the demurrer in this court, practically unimportant. It is true that the answer is not before us, and we cannot therefore say whether the judgment was right or wrong upon the issues thus made. The presumption is however, that it was right until the contrary is made to appear. There was no motion in arrest or for a new trial, nor does it appear that upon the trial the court ruled upon any question of law to which there was any exception, and there is therefore, nothing reserved for our determination. The certificate of the clerk does not state that the whole record is sent up. Under the circumstances we could not reverse the case, for any error preceding the answer, after a decision upon the issues of fact joined by the pleadings.

Judgment affirmed.

1 . Baldwin. J., havingbcenof counsel, took no part in the determination of this cause.