
    31168.
    SHAHAN v. AMERICAN TELEPHONE & TELEGRAPH COMPANY.
    Decided February 26, 1946.
    
      
      G. W. Langford, James Maddox, for plaintiff.
    
      Shaw & Shaw, Neely, Marshall & Greene, S. W. Fariss, for defendant.
   Felton, J.

1. The court erred in overruling the plaintiff’s demurrers to paragraph 3 of the answer, contained in subparagraphs (a), (b), (c), (e), (f), (g), and (h) of paragraph I. It was evidently the intention of the defendant to plead that the plaintiff was estopped to sue for the damages sought in the instant suit, for the reason that she knew that the defendant had settled with her husband for the identical damages when under the impression or with the idea that the property belonged to the husband. The plea falls short, however, in that no facts are alleged which would make the acts of the husband binding on the plaintiff, or estop her on the theory that she stood silently by and permitted the defendant to treat the land as her husband’s, etc. The mere fact that the defendant thought that the land belonged to the plaintiff’s husband in and of itself would not estop her from prosecuting the action. Nor would the mere fact that the defendant did not know that the husband had previously deeded the property to the wife estop her. The failure of the court to sustain the demurrer, in the absence of amendment, rendered further proceedings nugatory. Nearly all of the grounds of the amended motion deal with questions arising from the failure to sustain the demurrer. Since it is not clear just what questions will arise on another trial, none of those questions will be now decided.

The court erred in overruling the demurrer, as hereinbefore ruled.

Judgment reversed.

Sutton, P. J., and Parker, J., concur.  