Hall v. Waters

Wood, J., (after stating the facts). (1) The demurrer to the answer conceded the truth of such allegations therein as were properly pleaded and when the appellant rested on this demurrer and refused to proceed further and allowed judgment for costs to be entered against him, this was tantamount to a final determination on the issue of law deciding the merits of the case, and was a final judgment from which the appellant could prosecute his appeal and thereby test the ruling of the court on his demurrer. See, Melton v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 433. The demurrer alleged: First, that the facts stated by the defendants “commencing at the second paragraph and first page and ending on the fourth page thereof, stating as a justification of their trespass that the plaintiff was violating an ordinance of the city of Hot Springs, is not sufficient to constitute a defense,” etc. And, second, ‘ ‘ That the facts stated by the defendants in their second defense, beginning at the second paragraph on page four and ending at the third paragraph on page five, are not sufficient to constitute a defense, ’ ’ etc. (2) The paragraphs of the answer are not numbered, nor are the pages of the answer, as copied in the record, designated. Therefore the grounds of the demurrer are not -stated with sufficient certainty for this court to determine whether or not the facts referred to in the first -and second grounds of the demurrer stated a defense to appellant’s complaint. Furthermore, even if the facts referred to in the first and second grounds of the demurrer did not .state a good defense, these were not the only facts stated in the answer as constituting a defense. Each and ¡all -of -the material allegations of appellant’s complaint were specifically denied by the allegations of appellee’s answer. The denials were as specific as the allegations. This placed the burden upon the appellant to prove the allegations of his complaint before he could recover, and the -an-swer was sufficient to constitute a defense even if it be conceded that -the facts stated in the appellee’s answer as referred to in the first and second grounds of the demurrer were not sufficient -of themselves to constitute a defense. The answer being sufficient to challenge appellant to the proof of the -allegations of his complaint,. and appellant refusing to make such proof, the -court -did not err in overruling the demurrer and in dismissing appellant’s cause of ¡action -and rendering final judgment against him for costs. Affirmed.