
    No. 292
    No. 18753
    Houston Bingham v. Nypano R. R. Co.
    Error to the Court of Appeals of Marion county.
    923. PLEADING AND PRACTICE—Filing an amended partition after demurrer, tedder-ing same issues, supersedes the original plead-. ing and waives alleged errors in the ruling.
    1012. REFORMATION OF CONTRACT— 1.Where reformation and damages for breach of as reformed are pleaded as separate, causes of action, the first, being in chancery, should be first heard.
    2.Judgment for such reformation is appeal-able, and defeated party is entitled to trial de novo in Court of Appeals, regardless of immediate submission of cause for damages under contract as reformed.
   MARSHALL, C. J.

1. Where the court sustains a demurrer to a pleading and thereupon the pleader files an amended pleading tendering the same issues, any alleged error in the ruling upon such demurrer is thereby waived. Under such circumstances the amended pleading supersedes the original pleading.

2. It is permissible practice to state separate causes of action in a single petition, one of which may be for reformation of contract, and the other for damages predicated upon the breach of the contract as reformed. The first is a chancery proceeding which should be heard and determined by the court in advance of the trial of the second cause.

3. A judgment upon such reformation issue is appealable and the unsuccessful party is entitled to trial de novo in the Court of Appeals. Such right to a trial upon appeal is not defeated by an immediate submission of the cause for damages predicated upon alleged breach of the contract as reformed.

Judgment affirmed.

Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  