
    St. John v. Hardwick.
    Where a party amends his pleading after a demurrer has been sustained to it, he can not complain of the action of the Court on the demurrer.
    Under § 364, 2 B. S., p. 120, the plaintiff may dismiss his suit in vacation, by filing a written dismissal with the clerk, as effectually as if dismissed in open Court.
    APPEAL from the Hendricks Common Pleas.
   Davison, J.

Hardwick, who was the plaintiff, sued St. John, upon a promissory note for the payment of $120. The note is dated April 25, 1856; was payable to one Johnson A. Hayten, who sold and delivered it to the plaintiff, without indorsement.

Defendant answered in abatement of the action, setting up, substantially, that Hardwick commenced a suit on the note sued on in this case in the Hendricks Circuit Court, in the year 1857, and at the March term thereof in that year recovered a judgment on said note against St. John, for $104; that St. John appealed to the Supreme Court, and at the November term thereof 1858, the judgment of said Circuit Court was reversed, and the opinion certified to that Court on January 26, 1859; that on the 28th day thereafter, Hardwick withdrew said note from the files of the Circuit Court, and commenced this action thereon, in the Hendricks Common Pleas, on January 31, 1859, and before the opinion of the Supreme Court had been spread on the record. To this answer there was a demurrer sustained; and thereupon the defendant, by leave, &c., filed his amended answer, as follows: “That the plaintiff ought not to have and maintain Ms action, &c., because he says, that at a term of the Hendricks Circuit Court, within and for the county of Hendricks, being the March term of said Court, 1857, the plaintiff impleaded the defendant in a civil action, and for the same cause of action in the complaint mentioned, as from the record of that Court appears; and that Stephen Hard-wick., the then plaintiff, is the now plaintiff, and James St. John, the then defendant, is the now defendant; and that the suit aforesaid was pendmg in the said Circuit Court, at the time of the commencement of this action in the Common Pleas. And at the February term, 1859, of said Circuit Court, the defendant, James St. John, recovered a judgment against said plaintiff for costs, &c., wherefore,” &c.

Plaintiff demurred to this amended answer; but the demurrer was overruled, and he replied: 1. By a general traverse. 2. That the suit by him against St. John, commenced in the Hendricks Circuit Court, was by said plaintiff duly dismissed, on January 29, 1859, and the dismissal thereof entered on the order book of said Court; a copy of which was filed with the reply, and made part of it, in these words:

Stephen Hardwick^ 8._Actíon on note; now pending James St. John. \ ™ the Hendricks Circuit Court.

The above named plaintiff hereby dismisses the above entitled suit, now pending in said Court, at his own costs, and directs the clerk of that Court to enter this order of dismissal upon the order book of the said court, according to the statute in such case made and provided.

“January 29, 1859.

(Signed,) “Stephen Hardwick, Plaintiff.”

“State of Indiana, Hendricks County, ss.

“I, John Irons, clerk of the Circuit Court of said county, certify that the above dismissal was filed in my office on January 29, 1859.” “John Irons.”

And the plaintiff avers, that there was no suit pending in said Hendricks Circuit Court at the date of the commencement of this present suit, as alleged, &c., wherefore, &c. 3. “That there was not any suit pending in said Hendricks Circuit Court, of him, said plaintiff, against said defendant, at the time he, defendant, filed his answer herein,” &c.

Demurrers to the second and third replies were overruled, and the defendant excepted. The issues were submitted to the Court, who found for the plaintiff; and, over a motion for a new trial, there was judgment. The errors are thus assigned upon the record: 1. The Court erred in sustaining the demurrer to the answer. 2. There was error in overruling the demurrer to the first and second replies. 3. The motion for a new trial should have been sustained.

There is nothing in the first assignment; because the de*®n<^an^ having amended his answer after a demurrer had been sustained to it, has no right to complain of the action of the Court upon the demurrer. Polleys v. Swope, 4 Ind. 217; Jay et al. v. The Indianapolis, &c. Railroad Co., at the present term. It may be noted, that § 382 of the Practice Act relates, alone, to demurrers overruled. 2 R. S., p. 123.

The second alleged error presents this inquiry: Did the entry of the order of dismissal in the order book of the Circuit Court, operate as a dismissal of the suit? We have a statutory rule of practice, which says: “The plaintiff may dismiss his action in vacation, by filing with the clerk a writing to that effect. The clerk shall enter such written dismissal in the order book, and the Court shall enter judgment, accordingly, at the nest term. The plaintiff shall not be liable to the defendant for any costs made by him, after notice of the dismissal.” 2 R. S., § 364, p. 120.

This section, as we understand it, affirmatively authorizes the plaintiff to “dismiss his suit in vacation;” and his “written dismissal” having been filed in the clerk’s office, the suit stands dismissed, as effectually as if it had been dismissed in open court. In this instance, the writing filed by the plaintiff, seems to be in proper form, and the demurrer admits that it was duly entered upon the order book of the Circuit Court, before the present suit was instituted. The result is, the second reply is well pleaded.

But it remains to be considered, whether the third reply is, or not, demurrable. As we have seen, it alleges “that there was no suit pending at the time of the defendant’s answer.” This reply is plainly defective; so much so, that, in our opinion, the defendant, instead of demurring, should have moved to reject it. At all events, in looking into the record, it manifestly appears that “the merits of the cause have been fairly tried and determined in the Court below;” and, though the Common Pleas may have erred in its ruling upon the demurrer to the third reply, we are not inclined, on that ground, to disturb the judgment. .

J. S. Miller, for the appellant.

C. C. Nave and J. Witherow, for the appellee.

Per Curiam. — The judgment is affirmed, with 5 per cent. damages and costs.  