Opinion by

The petition contains a substantial averment of special damages to appellee by reason of the conduct of the city. We concur with counsel for the appellant that before there can be a recovery against the city for-damages the party complaining must allege and show by proof that he has suffered damages; but when he has done this it devolves upon the city to make it appear that the thing complained of is a common nuisance, affecting all the citizens alike, and therefore to be reached by indictment. Appellee alleged the injury to himself, and it was not necessary to allege that the thing complained of did not affect every one else in the same way. There is no order of the court overruling the demurrer, and under the well known rule of practice it must be considered that appellant waived it-, and the case must be treated as if it had not-been filed. There *150being then no demurrer, all the formal defects in the petition, if any, which could not be reached by general demurrer, are waived by the answer of appellant, which is a plea to the merits.

As there was a substantial issue, and there is no bill of evidence, we must assume that the evidence heard was sufficient to authorize the verdict and judgment.

Judgment affirmed.