Hartke

Plaintiff brought action upon a promissory note. A demurrer was sustained to the answer and, an amended answer having been filed, a demurrer to the latter pleading was sustained without leave to amend. From the judgment consequent to this ruling the defendant appeals.

Having elected to amend his answer appellant waived his right to object to the order sustaining the demurrer to the original answer. It would be anomalous for a defendant to join issue by an amended answer, go to trial on .the merits on issues chosen by himself and then, when the cause was decided against him, assign error because of a ruling on an answer not involved in the trial and judgment.

The question is, therefore, as to the sufficiency of the amended answer. This pleading sought to set forth that the note had been obtained by fraudulent and false representations, to wit: That the plaintiff was “short of money” and that unless the defendant would execute to the plaintiff the note set forth in plaintiff’s complaint he would be unable to advance any more money, and that if defendant would exe cute the note plaintiff would be enabled to use it as collateral security and that plaintiff would advance further…