
    Galloway et al. v. Carlisle et al.
    1. Appeal from Judgment Under Act of 1885 — Presumption as to Sufficiency of the Evidence..— Where no statement of the evidence is set out iu the abstract, in an appeal from a judgment prosecuted under the act of 1885, it will be presumed that the evidence was sufficient to warrant the judgment.
    
      2. Consequence.,of Failure to Except to Judgment on Demurrer. Where no exceptions are reserved to a judgment overruling a demurrer, and counsel answer over, all grounds of demurrer are thereby-waived, except the ground that the complaint does not state facts sufficient to constitute a cause of action.
    
      Ajpjoeal from, District Oou/rt of La Plata County.
    
    Messrs. James Hoefmire and H. Gaebanati, for appellants.
    Messrs. Russell & MoCloskey, for appellees.
   Reed, C.

Appellant Galloway brought a suit in replevin before a justice of the peace. Upon a hearing the suit was dismissed. This suit was brought upon the bond in replevin filed in that suit, for alleged damages. A demurrer was filed to the complaint, containing several supposed special grounds. The demurrer was overruled, and appellants answered at great length. Exceptions were filed to the answer, which were sustained as to part, which was ordered stricken out. A trial was had to the court without a jury, resulting in a finding for appellees in the sum of $100. Motion for a new trial was overruled, and judgment for that amount entered. No exception was taken to the judgment. This appeal was taken under the act of 1885. There was no transcript of the evidence in the abstract, and it is presumed that the judgment was warranted by it. No exception having been taken to the judgment, we would not be required to review it, even if we had the evidence. The correctness of the judgment under the evidence and pleadings is not questioned in argument, nor does it seem to have been the intention to appeal from the final judgment, but from the interlocutory judgments upon the demurrer, and the striking out of ,a part of the answer. Counsel for appellants say: “ Eor a reversal of the judgment, appellants rely on the first, second, third, fourth, and sixth grounds of their demurrer; ” also upon the ruling of the court in striking out part of the answer. No exception appears of record to the judgment of the court upon the demurrer, and counsel answered over, and went to trial upon the issues made. The want of an exception is fatal as to the judgment upon the first, second, third and sixth grounds of demurrer. The fourth ground was that the complaint did not state facts sufficient to constitute a cause of action. On examination of the allegations of the complaint as contained in the abstract, we think them sufficient, and the judgment of the court in overruling the demurrer correct.

No exception appears to have been taken to the judgment of the court in striking out part of the answer, but we have examined the answer, and think the judgment was warranted. The matter stricken out was irrelevant, and presented no defense. We advise that the judgment be affirmed.

Richmond and Bissell, 00., concur.

Per Curiam.

Por the reasons stated in the foregoing opinion the judgment is affirmed.

Affirmed.

Mr. Justice Hayt, having presided at the trial below, did not participate in this decision.  