
    John J. Carriger v. Thomas O. Sicks et al.
    1. Pleading—Waiver of Replication.—Going to trial without a replication waives the replication, and upon a trial the matter of the answer is deemed controverted as upon a denial.
    2. Arrest of Judgment.—A motion of arrest will be overruled if too broad j
    C. S. Wesner, for appellant,
    cited Case v. State, 5 Ind. 1, as to motion in arrest.
    R. W. Harrison and B. S. Higgins, for appellee Sicks,
    cited
    
      Adsomson v. Bose, 30 Ind. 380, as to curing defects by verdict.
    John W. Clements, for appellee Davis,
    cited 30 Ind. 380; 47 Ind. 580; 30 Ind. 398, as to arrest.
   Opinion of the court by

Mr. Justice Worden.

This was an action by Thomas O. Sicks, as the holder, against Isaac T. Davis as the maker, and John J. Carriger and Henry C. Brush as indorsers of a promissory note governed by the law merchant.

Issue, trial, finding and judgment for plaintiff.

Other parties were made defendant and other proceedings were had not necessary to be noticed in this opinion.

The only question in the case is presented by the ruling below in overruling a motion by Carriger in arrest of judgment.

The complaint stated all the facts necessary to make Carriger liable as the indorser of the note. Davis pleaded payment of the note, and the cause was tried without any reply to the answer of payment. It has been held, however, in numerous instances in this court, that going to trial without a replication was a waiver of the replication, and that upon the trial the matter of the answer would be deemed controverted as upon a denial.

The motion of Carriger in arrest did not reach any question arising upon a counterclaim filed by Davis against him, or if it did it was too broad, and covered the case of Sicks against him, and, being an entirety was properly overruled.

The judgment below is affirmed, with costs.  