
    Fisher et al. v. Scholte.
    Demurrer: waiver OR. The filing of an answer with a demurrer is a waiver of the demurrer or of any ruling thereon.
    
      Appeal from, Marion District Court.
    
    Saturday, December 10.
    Action in equity to enjoin the sale and appropriation to private use of certain property alleged to have been dedicated to public use, and in which plaintiffs claim a special interest. A temporary injunction was allowed, which was afterward dissolved on motion. A demurrer to the petition was also sustained; and from this latter ruling the plaintiffs appeal.
    
      Stone, Ayers da Curtis and Withrow <& Wright for the appellants.
    
      Z. T. Fisher for the appellee.
   Cole, Ch. J.

The transcript shows that, on the 10 th day of March, 1869, the defendant filed her demurrer to the plaintiff’s amended and substituted petition; and that, also, on the same day she filed her sworn answer to the same pleading; and that on the 17th day of March the •demurrer was sustained. The demurrer and answer are both in the transcript, hnd each extends to the entire pleading or petition. Under our code of practice “ the defendant may demur to one or more of the several causes of action alleged in the petition, and answer as to the residue.” Rev. § 2879. This clearly implies that he may not do both, to the same cause of action. The filing of the answer is a waiver of the demurrer, or of any error in the ruling thereon. This has been frequently so decided by this court. See cases cited in Dillon’s Dig. p. 650, § 95, and Hammond’s Dig. p. 362, § 29. These rulings generally are based upon the filing of the answer or other pleading subsequent to the ruling upon the demurrer. Rut the principle on which they are grounded applies with equal force to an answer filed with the demurrer. A waiver may as well precede as follow the fact or right waived.

It was and is a well-settled rule in the English chancery practice, that if any part of the matter covered by the demurrer was also covered by a plea or answer, the whole demurrer was waived or overruled by the plea or answer. Jones v. The Earl of Stratford, 3 P. Wms. 81; Jarvis v. Palmer, 11 Paige’s Ch. 650; Clark v. Phelps, 6 Johns. Ch. 214; Spofford v. Manning et al., 6 Paige’s Ch. 383; Livingston v. Stone, 9 Pet. 632. The same rale has been applied with all its force under the code practice. See Munn v. Barnum, 1 Abb. Pr. 281; Pierce v. Minturn, 1 Cal. 170; Slocum v. Wheeler, 1 How. Pr. 373; Bibend v. Kreutz, 20 Cal. 109 ; Hodgson v. Marine Ins. Co., 1 Cranch, C. C. 569; Spellman v. Weider, 5 How. Pr. 5; Bell v. Railroad Co., 1 Wall. (U. S.) 598. The answer to the merits of the whole case being on file, it was error to sustain tbe demurrer. See Estee’s PI. etc., vol. 2, p. 769, et seq.

Reversed.  