DEL I :YAM ET AL. 'Vs. NEAL., 243 DELOACH ET AE. y s. NEAL. Where a demurrer to declaration is overruled. It may re g ularly he follnwed by final judgment. The court is not bound to enter judgment of respondent oyster.
244 DELOACII ET AL. VS. NEAL. [5 If the defendant does not ask leave to withdraw It, or to plead over, the judgment is necessarily final. Where the record merely states the final judgment on such demurrer, without showing that any demurrer was filed, still. if process has been regularly served and the .declaration is substantially good, the judgment will be affirmed. Tnis was an action of debt, determiLed in the Crittenden Circuit Court, in April, 1841, before the Hon. WILLIAM K. SEBASTIAN, one of the circuit judges. The original summons bears date the 25th August, 1840; and the declaration appears to have been filed on the first day of September, following. The process was well executed. Only one entry appears to have been made on the court record; which, after the proper statement of the names of the parties, is as follows: "This day came the parties by their attornies, and the court being sufficiently advised of the matters arising upon the demurrer of the defendants, it is ordered that the same be overruled; and it is therefore considered by tbe court, that. the plaintiff recover of the defendants, five hundred dollars, the debt in the declaration :mentioned ; together with interest thereon at the rate of siX per cent. per annum, from the first day of May, 1840, until paid, and his cost in this behalf expended." The case came up on error. . The case was argued here by Cummins for plaintiffs in error, and Pax & Baldwin contra. By the "Court, Bixoo, C. J. The objection urged against this judgMent is, that -the court, iipon overruling the demurrer of the defendants below to the declaration, was bound by law to have ent3rod up judgment that they answer over, instead cf giving final jmUment thereupon for the debt. This objection may well be regarded :is futile. The demurrer, if one was in fact interposed, the law considers as a defence to the action in bar thereof, and therefore if the party demurring elected to stand by the demurrer, or omitted to pray leave to withdraw it, or to plead over to the action, the judgment would necessarily be final. I ut the record does not show affirmatively that any demurrer w o s filed or interposed by the def-nda-li below, and none is transcribed into the transcript of the record before us; nor is the filing or interposing thereo' in any m o nner noted of re-
Juni.] 245 cord; consequently we should consider ourselves warranted in wholly disregarding the judgment purporting to have been pronounced on the demurrer. But in either view, that is, whether the judgment on the demarrer be regarded or disregarded, the result must be the same; because the declaration is, in our opinion, at least substantially good, and upon a demurrer not assigning specially any . ground . of demurrer, must be held and adjudged sufficient. And also, if the demurrer be disregarded, still as the defendants below were duly served with valid process binding them to appear, and are stated on the record as having , in fact appeared, and suffered judgmnt to pass against them, xyithout availing themselves of the objection in abatement, that the writ issued before the declaration was filed, they must now be considered as having waived if. There is not therefore any error in the proceedings and judgment of the circuit court in this cause for which the same should be reversed. Judgment affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.