On Motion for a Rehearing.
In the motion for a rehearing the plaintiff in error says;
“The court has undoubtedly been mistaken, or has misconceived the proceedings in the court below. Plaintiff in error is not appealing from the order dismissing the cross-action; it is nowhere mentioned in the assignments of error presented, either in the motion for a now trial or in the assignments accompanying the petition for writ of error. The order presented for revision is the sustaining of a general demurrer to the answer and cross-action of the plaintiff in error. This was a preliminary and interlocutory order entered in connection with and as a part of the final judgment of the lower court. * * * The plaintiff in error is not asking, and nowhere in its brief, its assignments of error, or anywhere else has suggested, a revision of the action of the court in dismissing the cross-action.”
If this appeal should he construed as one from an order sustaining the general demurrer to the answer of the plaintiff in error to the suit by Head on the note, then the complaint is of a ruling which was never made. The amended answer of the plaintiff in error was divided into paragraphs. No. 2 was a general denial; No. 3 contained a special denial setting up a failure of consideration for the note upon the ground that McFarland had no title to convey, that the plaintiff was not an innocent purchaser of the note for value, that he took it with full knowledge of *769the defense made, that the plaintiff was suing for the use and benefit of the codefend-ant, McFarland, and for the purpose of defeating the defenses pleaded. In paragraph 4 the plaintiff in error begins its cross-action by “complaining over 'against defendant James P. McFarland, this defendant alleges that heretofore, to wit,” etc. It then proceeds to set out in detail the transaction between the plaintiff in error and its codefend-ant, McB’arland. McFarland answered by specially excepting to the fourth subdivision of the answer and cross-action in so far as it pleads a failure of consideration in the note sued on, because it stated no cause of action against the defendant (McFarland). Then follows a general denial. It ’thus appears that the exceptions were directed only to that portion of the answer, or answer &nd cross-action as it is called, embraced in paragraph 4 and what succeeded. This left as an available defense all of paragraph 3, in which the plaintiff in error set up the failure of consideration and the lack of good faith on the part of the plaintiff, Head, in acquiring the note. The court’s order sustaining the exceptions was no broader. It also appears from the recitals in the judgment ren-. dered that the court heard evidence upon the issue raised by the third paragraph of the answer, because he finds that Head acquired the note in good faith before its maturity.
The record does not warrant the conclusion upon which this ground of the appeal is based.
The motion for rehearing is overruled.