ON PETITION FOR A REHEARING.
Buskirk, J.A rehearing is asked in this case, because we did not pass upon a question made in the assignment of errors and argued by counsel. The assignment of error is, “No cause *601of action was filed with the j ustice before whom this cause was originally commenced. It is shown by the record that the following cause of action was filed before the justice :
F. Swigart and D. B. Anderson, for appellant.“A. D. Packard and John Spotts to William Mendenhall Dr. to amount due on note, a copy of which is filed herewith, and made a part hereof, $125.00, damages $25.00. Wherefore plaintiff demands judgment for $150.00 and cost.
" James M.. Howard, Pl’ff’s Att’y.”
We think that the above was a sufficient cause of action before a justice of the peace, if a copy of the note was filed therewith. The point argued here is, that the cause of action was defective, because neither the original nor a copy of the note was filed. The failure to demur does not waive the sufficiency of the facts stated in a complaint, and a party may assign for error here, that the complaint does not contain facts sufficient to constitute a cause of action. Kesler v. Myers, 41 Ind. 543; Miller v. Bittingsly, 41 Ind. 489.
But we thought in the original hearing, and still think, that a party cannot assign for error, that no cause of action was filed, and under such assignment require us to pass upon the sufficiency of a cause of action that was confessedly filed before the justice.
The petition is overruled.