Cameron v. Armstrong

Stockton, J. This cause has been presented to us in the argument by counsel for the appellant, as though he had elected to stand upon his demurrer to the petition, and had suffered judgment to go against him as for want of an answer. This is not our understanding of the -record. The defendant filed an answer, together with pleas of tender and set-off. Issue being joined thereon, and the defendant’s motion for a continuance overruled, he withdrew his set-off. The answer was not withdrawn, nor the plea of tender. We think the demurrer was waived by the answer; and the defendant cannot now assign, for error, the judgment of the court overruling the same. As the action was for a money demand, and the amount for which judgment should be rendered, a mere matter of computation, the damages were properly assessed by the clerk. The objection that the damages allowed are for a greater amount than prayed for in the petition is not tenable. The petitioner asks judgment for the amount of her claim, with interest. Judgment affirmed.