On Petition fob a Rehearing.
Hackney, J.The appellees, with great earnestness and skill, press upon us their petition for a rehearing. They urge us to recall our decision that the demurrer set out in the original opinion is sufficient in form. The argument of counsel, on the original hearing, was directed to the contention that the demurrer was to the paragraphs of answer jointly, and not severally. Any further point against the demurrer is contained in the following, which we quote from the brief of appellees’ counsel:
"In the second place, we suggest that the instrument referred to as constituting the ‘demurrers’ to the ‘second and fourth paragraphs’ of answer is not sufficient to invoke the judgment of the court upon the sufficiency of the paragraphs referred to. Section 346, R. S. 1881, provides that where the facts stated in any paragraph of answer are not sufficient to constitute a cause of defense, the plaintiff may demur to it, under the rules prescribed for demurring to a complaint. A strict compliance with the statute governing demurrers has always been required by the courts. This demurrer, under this rule, is not sufficient. Peden v. Mail, 118 Ind. 556.”
The case cited holds insufficient a demurrer to a reply, stating as cause therefor that the facts are not sufficient to constitute a good reply. It is now insisted that the point was originally made that the words "in law,” as *76employed in the demurrer, defeated ®ts force, in that it did not challenge the sufficiency of the pleading as stating an “equitable” defe'nse.
We have stated all of the argument of counsel, and think it manifest that no such point was presented.
In Martin v. Martin, 74 Ind. 207, it is said: “If there are points in the record which counsel do not suggest, and we do not perceive them, there are numerous decisions that we will not consider such points bn a petition for a rehearing.” We confess to have observed no such point as that now ingeniously urged by counsel in their brief. The following cases are cited in support of the petition: Lane v. State, 7 Ind. 426; Tenbrook v. Brown, 17 Ind. 410; Gordon v. Swift, 39 Ind. 212; Kemp v. Mitchell, 29 Ind. 163; Porter v. Wilson, 35 Ind. 348; Cincinnati, etc., R. R. Co. v. Washburn, 25 Ind. 259. All of these cases were reviewed in Petty v. Board, etc., 70 Ind. 290, and a different interpretation given them from that contended for by appellees. The following additional cases are cited by the appellees: Martin v. Martin, supra; Pine Civil Tp. v. Huber Mfg. Co., 83 Ind. 121; Reed v. Higgins, Admr., 86 Ind. 143; Grubbs v. King, Assignee, 117 Ind. 243; Peden v. Mail, supra; Firestone v. Werner, 1 Ind. App. 293.
In each of these cases, as in all other cases cited, we find some element omitted from the demurrer, the presence of which was essential to its sufficiency. The contention here is not that anything has been omitted from the pleading, but that it contains two words which qualify and limit its operation, in that it does not question the sufficiency of the answers as stating equitable defenses. We can not hold that the pleader used the words in a technical and limited sense, since, under our code, we have no distinct forms of action, and the rules of pleading are defined without reference to any distinction be*77tween actions at law and in equity. The appellee insists upon a strict construction, and the application of rigid technical rules, and cites the cases last named as supporting his contention. We do not favor adherence to unduly rigid construction in questions of practice. If we had, we would have ended this opinion where we quoted from Martin v. Martin, supra. The following cases illustrate the liberality of construction in considering the form of demurrers by this court, in each of which it was upheld: Bennett v. Shern, 11 Ind. 324 — “Does not state matter sufficient to constitute any defense;” Pace v. Oppenheim, 12 Ind. 533 — :“Does not contain facts enough to entitle the plaintiff to relief;” Stanley v. Peeples, 13 Ind. 232 — “Does contain facts sufficient to enable plaintiff to sustain said action;” Petty v. Board, etc., supra — “Does not state facts sufficient;” Young v. Warder, 94 Ind. 357 — “Doqs not state facts sufficient to constitute a good defense to plaintiff's said cause of action;” Ross v. Menefee, 125 Ind. 432 — “That neither of said paragraphs .states facts sufficient.” In Blinks v. State, ex rel., etc., 48 Ind. 172, “ground of action,” in a demurrer, was held the equivalent of “cause of action.”
Filed March 31, 1893.We do not find it necessary in the case in hand to apply rules of great liberality in holding the demurrer sufficient.
The petition is overruled.