By the Court,
Ringo, C. J.The objection urged against this judgment is, that the court, upon overruling the demurrer of the defendants below to the declaration, was bound by law to have entered up judgment that they answer over, instead of giving final judgment thereupon for the debt. This objection may well be regarded as futile. The demurrer, if one was in fact interposed, the law considers as a defence to the action in bar thereof, and therefore if the party demurring elected to stand by the demurrer, or omitted (o pray leave to withdraw it, or to plead over to the action, the judgment would necessarily be final. But the record does not show affirmatively that any demurrer was filed or interposed by the defendants below, and none is transcribed into the transcript of the record before us; nor is the filing or interposing thereof in any manner noted of record; consequently we should consider ourselves warranted in wholly disregarding the judgment purporting to have been pronounced on the demurrer.
But in either view, that is, whether the judgment on the demurrer be regarded or disregarded, the result must be the same; because the declaration is, in our opinion, at least substantially good, and upon a demurrer not assigning specially any ground of demurrer, must be held and adjudged sufficient. And also, if the demurrer be disregarded, still as the defendants below were duly served with valid pro. cess binding them to appear, and are stated on the record as having in fact appeared, and suffered judgment to pass against them, without availing themselves of the objection in abatement, that the writ issued before the declaration was filed, they must now be considered as having waived it. There is not therefore any error in the proceedings and judgment of the circuit court in this cause for which the same should be reversed. Judgment affirmed.