#### Jonathan Cobb, Plaintiff in Error, v. D. Ingalls, Defendant in Error.

ERROR TO MORGAN.

Motions, demurrers, &c., should be determined by the court, in the order in which they are made, and a demurrer, while a motion to dismiss is undisposed of, is a waiver of the motion, and a plea of the general issue, the demurrer being undisposed of, is a waiver of the demurrer.

Opinion of the Court by

Justice Smith.

Three grounds are relied on by the plaintiff in error, for the reversal of the judgment of the circuit court :

1. That the motion to dismiss the cause ought to have been acted on by the circuit court;

2. That permitting the plaintiff to amend his declaration, before acting on such motion, was erroneous;

*2343. That the court should have decided the demurrer before the issue in fact was tried.

The untechnical manner in which the record has been made up is calculated to lead to some confusion in the examination of the real merits of this case. As far, however, as we can give to it a fair interpretation, it would seem that the defendant, without assigning any grounds for cause of dismissal, upon the plaintiff’s being permitted to amend his declaration, abandoned his motion, and filed a general demurrer, and without insisting on a decision of'the demurrer, filed a plea of the general issue. We can not doubt that this demurrer to the declaration was a waiver of his motion to dismiss the cause, but whether it was or not, the grounds of that motion, not appearing on the record, can not, of course, be inquired into. By pleading in chief the general issue, the defendant equally waived his demurrer. If the causes of demurrer were thought by his counsel to have been sufficient, a decision on the demurrer should have been insisted on. Had the court refused, as was suggested on the argument, to decide the questions raised by the demurrer, the defendant should have rested his case, and not have plead to the merits. The court would then have been compelled to decide the question of law, and the defendant, if not satisfied therewith, .would have had the opportunity of having that opinion reviewed in this court. He, however, thought proper to waive that right, and thereby conclude himself by a trial on the merits. The jury rendered a verdict against him, and as there is no irregularity therein, we are bound to say that the judgment of the circuit court must be affirmed with costs. (1)

Judgment affirmed.

(1)

See note to Beer et al. v. Philips, ante, p. 44.