Evans

This is an action to recover from the principal and sureties on an executor’s bond a balance unpaid by the executor upon distributive shares of an estate awarded to plaintiffs upon distribution.

*312 The action was not pressed as to defendant Gerken, the principal on the bond, but the judgment went against the defendants Gallagher and Offerman, the sureties, and they appealed from the judgment upon the judgment-roll and a bill of exceptions.

1. Appellants claim their demurrer to the complaint should have been sustained. To this respondents object that appellants should not be heard on their demurrer in this court, because it appears by the order of the court below, overruling the demurrer, that it was done by the express consent of the parties. This objection should undoubtedly be held good as to any special ground of demurrer, since obviously consent to the overruling of a demurrer is tantamount to a withdrawal of it and a waiver of the objections thereby raised; it is quite distinguishable from an instance where the demurrer is overruled merely from failure to argue it, or, as is sometimes expressed, “for want of prosecution.” In such case it has been properly held that it is…