On Petition for a Rehearing.
Gavin, J.Counsel for appellant complain of our ruling holding the cross-complaint good, and they discuss its various allegations of defects in the machine at considerable length and detail. In their original brief they disposed of this subject very summarily with the statement, “what we have said as to the insufficiency of the answer applies to the cross-complaint.” The vice alleged to exist in the answer was: “It alleges that the machine 'would not do good work, but was wholly unfit for the work it was designed to do.’ This allegation is too general.” A very cursory examination of the cross-complaint would suffice to show that it was not subject to this objection. It has been oftentimes decided that the points upon which a party relies should be presented to the court in the first instance. Elliott’s App. Proced., section 557.
As a matter of fact the pleading not only alleges that *459the machine would not do good work, but sets forth specifically several various particulars in which it so failed; e. g., that it would not bind the wheat and would choke; that it would not cut the wheat and other grain in a satisfactory manner; that it would not elevate the grain, and had a heavy draft, all of which defects are, as we construe the language, alleged to have been occasioned by reason of the improper construction of the machine. In addition to these it is also alleged that the material was inferior and defective, and the parts would not wear.
These specifications bring this pleading clearly within the cases cited to sustain it in the original opinion; nor are we able to find anything in the case of Shirk v. Mitchell, 137 Ind. 185, which contravenes our holding.
Counsel also complain that we failed to notice “another serious defect in the cross-complaint, in that it does not aver that the appellant waived the giving of the written notice provided for in the warranty.” If it be conceded that no waiver is alleged, there is a direct averment that the required notice was given. This we regard as certainly sufficient to repel a demurrer.
The further argument is advanced in the petition, for the first time, that appellants were at least entitled, under their motion for judgment on the answers to interrogatories, to judgment upon the issues on the cross-complaint.
Their motion was a general one; as stated by counsel, it went “to the whole record. In considering it, it must be considered, in connection with the complaint, cross-complaint, the answer and general verdict.”
Since the motion went to the whole record, before any error can be predicated upon overruling it, it must appear that appellant was entitled to judgment upon the whole record.
We think it plain, from the motion itself and from *460appellant’s original brief, that what they were claiming was judgment in their favor on the whole record, i. e., on both the cross-complaint and the complaint. Their motion was thus a joint one. They neither sought to present to the trial court nor to this court any question severally as to the different issues joined.
Filed June 22, 1894.Joint motions as to several rulings do not ordinarily present any question as to each separate ruling. Joint demurrers and joint assignments of error, joint exceptions, joint motions to strike out evidence, and joint causes for new trial must all be well taken as a whole, else no question is saved. Elliott’s App. Proced., sections 337, 788, 789; De Vay v. Dunlap, 7 Ind. App. 690; and cases cited.
Counsel, after a diligent search, have not presented any authority to sustain their position on this proposition.
The petition is overruled.
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