Opinion
April 16, 1903.
Action by Jacob Cohen Son against W.E. Harter and Julia E. Harter. From order sustaining demurrer, plaintiffs appealed.
Messrs. Bellinger Townsend, for appellants. Mr. I.L. Tobin, contra.
April 16, 1903. The opinion of the Court was delivered by
When this action by appeal came on for a hearing in this Court from an order by Judge Klugh as Circuit Judge, sustaining a demurrer to the complaint interposed by the defendant, W.E. Harter, counsel for both appellants and respondents, in writing, agreed that a judgment should be entered by this Court reversing the judgment of the Circuit Court, because the Circuit Judge had been led by the representation of counsel for said appellants and the respondents, that the facts of the complaint alleged that there was no promise by defendant, W.E. Harter, to pay the debt of appellants out of his own funds, to pass the order sustaining the demurrer as to W.E. Harter.
Therefore, it is the judgment of this Court that the order of Judge Klugh sustaining the demurrer be and the same is hereby reversed, and the action be remitted to the Circuit Court for a new trial, and this without costs. Messrs. Justices GARY and JONES concur on the ground that the record shows that there was error.