
    1,766.
    Berkey v. City of Elkhart.
    Harmless Error. — Sustaining Demurrer to Affirmative Paragraph of Answer, — General Denial. — Changing Issues. — It is harmless error to sustain a demurrer to an affirmative paragraph of answer, where the same defense can be made under the general denial which is pleaded. Withdrawing the general denial after such ruling cannot change its effect.
    From the Elkhart Circuit Court.
    
      H. C. Dodge, for appellant.
    
      O. T. Chamberlain and P. L. Turner, for appellee.
   Ross, J.

The appellee brought this action against appellant to recover a penalty for the violation of a city ordinance. The action was commenced in the court of the city of Elkhart, and on appeal to the circuit court appellee recovered judgment against appellant. From the judgment of the circuit court an appeal was taken to the supreme court, and the cause was transferred by the latter court to this court. Berkey v. City of Elkhart, 141 Ind. 408.

The specifications of error assigned in this court are as follows:

t£l. The court erred in overruling the appellant’s demurrer to the complaint.
£ £ 2. The court erred in sustaining appellee’s demurrer to the second paragraph of appellant’s answer. ”

We think the complaint is not subject to the objections urged against it.

It is also shown that after the court had sustained the demurrer to the second paragraph or special answer, the appellant withdrew the first paragraph, which was a general denial.

Filed October 17, 1895.

A city court is governed by the same rules in making issues as justices of the peace, hence all defenses in that court, except the statute of limitations, set off, and matter in abatement, are available under the general denial. On the appeal of this case to the circuit court, the appellant was entitled under his answer of general denial to make the defense which he sought to set up in his special answer, hence it would not be error to sustain a demurrer to the special answer while appellant had the benefit of his answer of general denial. Evans v. Koons, 10 Ind. App. 603.

It was a harmless error to sustain the demurrer to the second paragraph of the answer at the time the ruling-was made, and appellant could not by withdrawing his answer of general denial change the legal effect of the ruling. As said by this court in Wickwire v. Town of Angola, 4 Ind. App. 253, “One against whom a harmless ruling has been made cannot voluntarily change the issues so that it shall become harmful, and thus bring into the record a reversible error.”

We find no reversible error in the record before us.

Judgment affirmed.  