
    Stanbury v. Kerr.
    1. By answering over after demurrer overruled, the demurrer is waived, and error cannot be assigned on overruling the demurrer.
    2. The admission or rejection of merely immaterial evidence may not be assigned for error.
    
      Appeal from District Court of Arapahoe County.
    
    This was an action upon a bond given by Amanda J. Troutt as principal, and Kerr as surety, upon an appeal from a judgment in a justice’s court in an action of unlawful detainer, and also to recover the moneys received by the surety from the principal in the bond, to be paid, as was contended, to the plaintiff. Default was entered against Amanda J. Troutt. The cause was tried in the district court without the intervention of a jury, arid resulted in a finding for the plaintiff, and the assessment of damages against Troutt in the sum of $3f5; “ and that there is justly and equitably due from defendant Kerr, together with defendant Troutt, the sum of $139, parcel of said $3f5.”
    “ Wherefore it is considered by the court, that the plaintiff Frances Stanbury do have and recover of and from defendant Amanda J. Troutt the sum of $375, with costs to be taxed, and have execution therefor. It is further ordered and adjudged by the court, that plaintiff do have and recover from defendant Kerr, together with the defendant Troutt, $139, together with costs to be taxed, and have execution therefor. And it is further ordered by the court, that on satisfaction of the judgment for $375 against said defendant Troutt, the same shall operate as satisfaction of the judgment against defendant Kerr, together with said Amanda J. Troutt, and that upon the satisfaction of the judgment herein against defendant Kerr for $139 and costs, the same shall operate as satisfaction of the said judgment against-the said Amanda J. Troutt for said $375, to extent to which same will satisfy same.”
    Defendant Kerr excepted to the foregoing findings, and each of them, and prosecuted this appeal.
    Other facts are stated in the opinion.
    Messrs. Wells, Smith and Macon, for appellant.
    Mr. Wi. B. Mills, for appellee.
   Stone, J.

The first error assigned is to the overruling the demurrer to plaintiff’s amended complaint. If it were necessary to determine the sufficiency of the complaint .upon this assignment, we should probably find that since one condition of the bond declared on was unquestionably .good, upon breach' pleaded of this, the demurrer was rightly overruled; but aside from this, the appellant, by answering over, waived his demurrer, and cannot thereafter assign error for such overruling. Freas v. Englebrecht, 3 Col. 377; Puterbaugh, C. L. Pr. 266, and cases cited.

As the second, third, fourth, fifth and sixth assignments are not presented in the 'argument by counsel for appellant, they appear not to be relied upon, and will not be noticed here further than to say that upon examination we do not find them well laid.

The seventh error assigned is: “The district court erred in sustaining plaintiff’s-objection to the question, ‘what is the amount of attorney’s fees,’ propounded to witness Kerr, and in not allowing the witness to answer the same.” The witness had just testified that he had received $125 from Mrs. Troutt, his co-defendant and principal on the bond; that this money had been paid him monthly, $25 each month, that being the amount of rent due each month to plaintiff from Mrs. Trout as tenant; that the money was paid to him (witness) on account of the said rent; that he became Mrs. Troutt’s surety for the payment of this rent; that he had tendered it to plaintiff, who refused it, and that then he was entitled to use it to indemnify and protect himself “against anything that was necessary in the suit.”

From this testimony it will be seen that the amount of attorney’s fees was immaterial (presuming that the fees referred to were those incurred by the witness in this, suit), for the money being paid to him to satisfy the rent, due plaintiff, its expenditure for any other purpose would be no defense in a suit to compel its application to the purpose for which it was deposited with him by his. principal.

The eighth assignment is based on the court’s refusal to allow the defendant to show by his own testimony “that the moneys received by him from Amanda J. Troutt were solely to indemnify him against all damages, attorney’s fees and other costs and damages which might be occasioned to him by reason of defending any suit that might be brought against him on account of hissuretyship on the supposed bond in the complaint mentioned, and that he has already expended in def ending said' suit, in costs and attorney’s fees, a sum exceeding $125.”

The effect.of this testimony, if allowed, would have been in part to contradict what the witness had just previously testified to, touching the purpose for which the' money had been paid into his hands, and is moreover open to the same objection as stated above respecting the' question as to the amount of attorney’s fees. The ninth, tenth and eleventh assignments are that the court erred in finding the issues for the plaintiff, in finding the sum of $139 to be due from defendant Kerr, together with his. co-defendant Troutt, and in ordering judgment against, defendant Kerr. We are unable to perceive that the-court erred in the findings and judgment. One of the conditions of the bond was to pay all costs and damages which had been and should be sustained by plaintiff by the wrongful detention of the premises, and it appears, that plaintiff had been deprived of the use of the premises by the wrongful detention of the defendant Troutt, seven months. A reasonable measure of damages was. the stipulated rent at $25 per month, amounting to $175. The judgment against appellant was for $139, being the-sum of $125, which he admitted he had received as rent, due the plaintiff, together with the interest thereon.

The form of judgment is not open to objection, under-the facts in the case.

It was proper for the court to render such judgment as the nature of the case and the evidence showed the plaintiff entitled to. Civil Code, sec. 71; Ibid, chapter-IX.

While some of the features of this case pertaining to-the form of the action and of the judgment rendered present apparent novelties when measured by the rules, of common law practice, yet we think they may be regarded as coming fairly within the contemplated scope and rules of our present code of procedure, whereby distinctions between law and equity are disregarded as to. form; and upon this view we think the evidence warranted the findings and judgment rendered, and that substantial justice was done thereby. The judgment is. affirmed. Affirmed..  