
    No. 13,519.
    The Eagle Machine Works v. Arens et al.
    Supreme Court. — Pleading.—Sustaining Demurrer to General Denial. — Reversal of Judgment. — Where it appears by the record that a demurrer was sustained to a general denial well pleaded to an affirmative answer, the judgment must be reversed, as the Supreme Court is bound to act upon the record as it comes to it.
    From the Hancock Circuit Court.
    
      J. A. New and J. W. Jones, for appellant.
    
      L. H. Reynolds, for appellees.
   Elliott, J.

There is only one paragraph of the reply in the record, designated as the second paragraph, and that paragraph is the general denial. A demurrer was addressed to the second paragraph of the reply, and it was sustained. It was, of course, error to sustain a demurrer to a general denial well pleaded, as was that contained in the second paragraph of the reply, to an affirmative answer. We are bound to act upon the record as it comes to us, and we can see no escape from the appellant’s contention. The paragraph of the reply was numbered as a second paragraph, and in the body of the pleading it is recited: “And for a second and further reply, etc.,” thus positively designating the paragraph as the second.

Filed April 9, 1890.

It may be true, as appellees’ counsel contends, that the demurrer was intended for a different paragraph of the reply, but it is expressly addressed to the second paragraph, and, in the face of this fact, we can not infer that it was intended for some other paragraph than that to which it is directly addressed.

As the record presents the question to us we can not do otherwise than reverse the judgment.

Judgment reversed.  