
    Lamb & Son v. Bryan et al.
    1. Pleading: motion to strike: waiver by answer. Error in overruling a motion to strike out portions of the petition is waived by filing an answer.
    This case being on the merits precisely like Baher & Go. v. Bryan, ante, p. 561, the decision in that case is followed.
    
      Appeal from Story District Court.
    
    Wednesday, October 22.
    
      
      F. D. Thompson and Dyer db Fitehpatrioh, fox* appellants.
    
      Stevens dh Hayes, for appellee.
   Seevebs, J.

-I. The defendants moved the court to sti’ike out certain portions of the petition, which was ovei’ruled. It is urged that it should bave been sustained on the ground that the portions of the petition objected to in the motion are immaterial. Conceding this to be so, there is some doubt whether the defendants were materially prejudiced; but, conceding they were, the ei*ror was waived by filing an answer. It is also urged that the court erred in refusing to strike out what is said to be a cause of action against Bryan, or in not striking out the cause of action against the other defendants, because thei’e was a misjoinder of causes of action and parties. But we think Bryan was a necessary party, and that it was essential for the plaintiff to allege and establish that Bryan was indebted to him for material used in the construction of the school-house.

This case on the merits is precisely like Baker & Co. v. Bryan et al. and Wright & Ives v. Same, decided at the present term, {ante, p. 561,) and, following those cases, this must be

Affirmed.  