City of Huntingburg v. State Ex Rel. Olinger

*163 Nichols, P. J. Action by appellee against appellants. The complaint is in two paragraphs: The first paragraph is for a mandate against the appellant city and also against its mayor and five members of its common council, individually. The amended second paragraph is in tort against the city alone. The city (appellant) filed its separate plea in abatement to both paragraphs of complaint to which appellee’s demurrer for want of facts was sustained. Appellants then filed their separate and several demurrers for want of facts to the first paragraph of complaint, and a similar demurrer to the second paragraph. The court sustained appellants’ demurrer to the first para-, graph of complaint, and overruled the demurrer to the amended second paragraph; the city elected to stand upon the sufficiency of its demurrer, refused tq plead further, and thereupon the court rendered judgment for $1,532.98 damages against the city upon said amended second paragraph of complaint. The plea in abatement undertakes to set up all of the proceedings before the council concerning the improvement involved including appellee’s claim for extra work which he was required to do because of the mistake as averred in the complaint, and the action of the common council in denying the claim. The averments of the plea are clearly in bar rather than in abatement and the demurrer to such plea was properly sustained. It was without force as a plea in abatement. The most that can be said for the answer is that it was an attempt to plead former adjudication and, as such, it must be in bar. 1 Watson, Revision Work’s Practice §618. *164 *163 The amended second paragraph of complaint is against the city alone and seeks no relief from any of the other appellants. Appellants' assignment of error *164 is joint, the second specification thereof being that the court erred in overruling appellants' demurrer to the second paragraph of complaint. Such joint assignment must be good to all that join in it or it is not good as to any. Denkewalter v. Wilson (1906), 39 Ind. App. 289, 78 N. E. 1049; Booker v. Killion (1902), 29 Ind. App. 196, 197, 64 N. E. 101; 4 Watson, Revision Works' Practice 1715, note 4, and authorities; Bush v. McBride (1903), 159 Ind. 663, 65 N. E. 1026 . We are therefore precluded from discussing the demurrer on its merits. The judgment is affirmed.