| Or. | Apr 17, 1885
A part of the second amended answer was; struck out on motion, and a demurrer was sustained to another part setting up a counter-claim. Defendant thereupon filed, another answer purporting to be a new answer, but which it is-now argued is not such, because it was but a copy of the former-answer with the parts objected to left out; and even if it were a new answer, it is argued that exceptions to the order striking cut and in sustaining the demurrer were not waived. Suppose the answer to be what it purports to be—a new answer. Then the rule is, when a demurrer is overruled and the party pleads-over, the demurrer is abandoned, and it ceases to be a part of the record. (Young v. Martin, 8 Wall. 357.) So, “when a-, pleading is amended, the original pleading ceases to be a part of the record, because the party pleading having the power, has elected to make the change.” (Brown v. Saratoga R. Co. 18 N.Y. 495" court="NY" date_filed="1859-03-15" href="https://app.midpage.ai/document/brown-v-saratoga-railroad-5477447?utm_source=webapp" opinion_id="5477447">18 N. Y. 495; Tennant v. Pfister, 45 Cal. 270; Barada v. Carondelet, 8 Mo. 649; Bowles v. Doble, 11 Or. 474" court="Or." date_filed="1884-10-15" href="https://app.midpage.ai/document/bowles-v-doble-6894526?utm_source=webapp" opinion_id="6894526">11 Oreg. 474.) The correct practice seems to be to ask leave to withdraw the abandoned pleading from the files and to plead over. (Caldwell v. May, 1 Stewt. 427; Ford v. Jefferson Co. 4 Greene, 274; Earp v. Commissioners, 36 Ind. 470" court="Ind." date_filed="1871-11-15" href="https://app.midpage.ai/document/earp-v-commissioners-of-putnam-county-7038731?utm_source=webapp" opinion_id="7038731">36 Ind. 470.) Taking a bill of exceptions will
'The pleadings on which the parties went to trial became the sole -pleadings in the case, as if no others ever existed. By filing the new answer the former answer was in effect withdrawn, and all motions and demurrers relating to it accompanied it. This must be so unless it be said that a new answer was not filed; but this contradicts the record. The errors thus waived by pleading over were the errors chiefly relied onto reverse the judgment. The third amended answer simply denied the complaint, and the defendant could not offer evidence of a failure of consideration under an answer containing simply a denial of the allegations of the complaint. (McKyring v. Bull, 16 N. Y. 304.)
The order must be that the judgment be affirmed.