Rogers v. Crawford

22 N.M. 671 | N.M. | 1917

Lead Opinion

OPINION OP THE COURT.

IiANNA, C. J.

(after stating the facts as above).

[1] The bill of exceptions having previously been stricken on motion, we have left for consideration but the first three assignments of error, which are predicated upon the court’s action in sustaining plaintiff’s demurrer to the defendant’s answer, and the three assignments of error complained of this action on the demurrer upon different grounds. We find, however, that the defendant after the demurrer was sustained filed an amended answer and later a second amended answer. For this reason, he has lost his right to be heard upon these matters in this court. It has been held that the filing of an amended pleading waives any error, other than jurisdictional, in sustaining a demurrer to the original pleading. 31 Cyc. 744; Bremen M. & M. Co. v. Bremen, 13 N. M. 111, 79 Pac. 806.

For the reasons stated,, the judgment of the district court is affirmed, and it is so ordered.

Parker and Roberts, JJ., concur.

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Rehearing

ON MOTION FOR REHEARING.

IIANNA, C. J.

The plaintiff in error in his motion for rehearing raises the point that this court, in its opinion, has overlooked the exception to the general rule upon which the opinion in this case was based, contending that he comes under the exception to the rule, which is ,as stated in the case of Ingham v. Dudley, 60 Iowa, 16, 14 N. W. 82, that:

“Where an answer is held bad on demurrer, the defendant does not waive his exception to the rulings on the demurrer by amending his answer so as to set up new defenses.”

In other words, a waiver occurs only where the amendment is designed to supply an omission or a cure a defect pointed out by the demurrer.'

[2] On re-examination of the question we find that the demurrer did not attack the defense of the unreasonableness of the attorneys’ fees. In this the planitiff in error, in his motion for rehearing, is correct, but his contention in this respect avails him nothing by reason of the fact that he is confronted with an apparent abandonment of this defense owing to the fact that in his amended answer and his second amended answer he has nowhere set out the defense with respect to the attorney’s fees, and must now be held to have abandoned the same. This court has held in Pople v. Orekar, 22 N M. 307, 161 Pac. 1110, that:

“In every amendatory or supplemental pleading filed by a party, it is necessary for bim to therein restate his entire cause of action, defense, or reply, and all matters set forth in his original pleading, and not carried forward into" his amendatory of supplemental pleading, are abandoned.”

For the reason stated, the motion for rehearing is denied.; and it is so ordered.

Parker and Koberts, JJ., concur.