The opinion
On Petition eor a Rehearing.
Black, C.
The record shows that the appellants demurred to the complaint for want of sufficient facts, and that the demurrer was overruled, but does not show that the appellants excepted to this ruling.
It is argued by the eminent and learned counsel for the appellees, in support of a petition for a rehearing, that, by failure to except to the ruling upon the demurrer, the appellants waived the question of the want of sufficiency of the facts stated in the complaint, and that this court ought not to consider that question.
By failure to except to the ruling the appellants waived the question of the correctness of that ruling, and could not assign it as error; but they did not thereby waive their right, on appeal, to assign as error that the complaint does not state *490 facts sufficient to constitute a cause of action, and, under that assignment, to require this court to determine, not the question whether the complaint was good on demurrer, but the question whether it'was good after verdict. In such case this court will examine the question as if no demurrer had been filed. Hostetler v. State, ex rel., 62 Ind. 183 .
If our decision result in loss to the appellees, this is a hard necessity upon which we are driven in avoiding contravention of a most salutary principle. Upon further consideration we adhere to our original opinion.
Per Curiam.
It is ordered that the petition for a rehearing be overruled.