
    Baell et al. v. Swicord et al.
    
   Beck, P. J.

1. One of the defendants in the case demurred to this petition, and was dismissed as a party defendant. To tlie judgment of dismissal tlicre is no exception, and the allegations of the petition relating to that party need not be considered.

2. While it does appear on the face of the petition that one of the defendants is “in penal confinement,” no objection was made to his being made a party defendant in this case, either by himself or by any- of his co-defendants.

3. The allegations of fraud and deceit and of a scheme of D. M. Swicord to defraud plaintiff are sufficient, as against a general demurrer, to show that petitioner is entitled to equitable relief, if those allegations are sustained by evidence; and consequently the court did not err in overruling the general demurrer to the petition.

4. Paragraphs, 4, 10, and 11 of the petition, which are set forth in full in the statement of facts, are demurred to on the ground that “the allegations of those paragraphs do not show that petitioner had any right, title, or interest in or to the 50-acre tract referred to in these paragraphs, and there is no allegation that either 35. M. Swicord, W. E. Swicord, or Isaac Swicord owed petitioner any obligation to convey said land to her.” This ground of demurrer raised a valid objection to

. the paragraphs referred to, and the court erred in not sustaining the demurrer to these paragraphs.

5. While paragraph 12, standing by itself, would appear to be'demurrable on account of the vagueness of the allegation that one of the defendants, “in furtherance of his general scheme to obtain from petitioner such property as she had, caused the title to vest in him,” yet when that paragraph is read in connection with paragraph 16, these' two paragraphs are sufficient to withstand the demurrer directed at them, which is in the nature of a general demurrer, though each of . these paragraphs might have been open to attack by a special demurrer.

6. Paragraphs 22 and 23 of the petition should have been stricken'on the ground that their allegations were immaterial.

7. In accordance with the foregoing rulings, the majority of the eourt are of the opinion that the judgment of the court below should be affirmed with direction that the demurrers to paragraphs 4, 10, 11, 22, and 23 of the petition be sustained and those paragraphs stricken.

Judgment affirmed, with direction.

All the Justices conaur; except Beck, P. J., an<J Atkinson, J., who are of the opinion that a judgment of reversal should be rendered.

No. 7240.

February 20, 1930.

W. V. Custer & Son, for plaintiffs in error.

A. B. Conger,' contra.  