Behrens v. McCance

Niblack, C. J.

Action by Eobert McCance against John *331 E. Behrens, upon an account for work and labor performed at the alleged special instance and request of the latter.

Filed May 18, 1886.

The defendant answered: First. In denial. Second. Payment. Third. That the work and labor sued for was performed in and about a manufacturing establishment, under a contract of partnership with, and as a temporary member of, a firm of which the defendant was at the time a member, and not under the employment of the defendant.

A demurrer was sustained to the third paragraph of the answer, after which there was a verdict and judgment in favor of* the appellee.

The only question made here is upon the decision of the circuit court sustaining a demurrer to the third paragraph of the answer, as above stated. But no exception was reserved to the decision complained of.

The record entry of that decision is as follows: “Again come the parties by counsel, and the demurrer to the third paragraph of answer is sustained by the court.”

It is definitely settled by a long line of decisions, that where there is an appearance to the action, an exception to the ruling of a nisi prius court is absolutely necessary to present any question to this court by appeal except in two contingencies : First. Where the court has no jurisdiction of the subject-matter of the action. Second. Where the complaint does not state facts sufficient to constitute a cause of action. Buskirk Pr. 289; 2 Works Pr., section 1071; Horner v. Hoadley, 97 Ind. 600 .

As this case does not fall within either one of the exceptions to the general rule, indicated as above, it follows that the appellant, by his failure to note an exception at the proper time, waived all objection to the sustaining of the demurrer to the paragraph of answer of which he complains in argument, and that this appeal presents no question for our decision.

The judgment is affirmed, with costs.