
    [No. 5212.
    Decided April 19, 1905.]
    Andrew McNeilly, Administrator of the Estate of Mary McNeilly, Deceased, Appellant, v. Hugh McNeilly Respondent.
      
    
    Appeal—Review—Harmless Error. Error in overruling appellant’s demurrer to an affirmative defense, in an equitable case, is without prejudice when the findings sustain the judgment regardless of the affirmative defense, and the evidence is not before the court in a statement of facts.
    Appeal from a judgment of the superior court for Lincoln county, Neal, L, entered November 2, 1903, upon findings in favor of the defendant, after a trial before the court without a jury, dismissing on the merits an action for an accounting.
    Affirmed.
    
      M. 0. Reed and H. N. Martin, for appellant.
    
      Myers & Warren, for respondent.
    
      
      Reported in 80 Pac. 541.
    
   Per Curdim.

This was an equitable action for an accounting. The plaintiff appeals from an adverse judgment. The statement of fac-ts was stricken by this court, on the 10th day of June, 1904; so that only two of the errors assigned can be considered on the record before us. These are, (1) error in overruling the demurrer to the affirmative defense set forth in the answer, and (2) error in overruling a motion for judgment in favor of plaintiff, for failure on the part of the defendant to answer certain interrogatories propounded to him. The findings of the court fully sustain the judgment, regardless of the affirmative defense, so that, conceding that the ruling on the demurrer was erroneous, it was error without prejudice. The record discloses no such ruling as is referred to in the second assignment.

There is no error in the record and the judgment must be affirmed.  