Furst v. Bury

PER CURIAM. This case was before this court on a former appeal from an order sustaining a demurrer hi the answer, at which time the order of the trial court was reversed. See same title, 61 S. D. 418, 249 N. W. 732, 89 A. L. R. 649. Following the filing of the opinion on the former appeal, the defendant moved for judgment on the pleadings. This is an appeal from an order of the trial court denying the motion for judgment. As set forth in our former opinion, the answer pleaded new matter, not relating to a counterclaim, in avoidance of the cause of action stated in the complaint. Under the provisions of section 2372, R. C. 1919, this new matter pleaded is deemed to be controverted by the plaintiff. It is the contention of the defendant, however, that by demurring to the answer the plaintiff admitted the new matter pleaded, and, the demurrer having been- overruled, the plaintiff is not entitled to the statutory denial provided in section 2372. We are satisfied the contention of the appellant is without merit. The demurrer admitted the facts pleaded in avoidance only for the purpose of testing the legal sufficiency of the answer, and, the demurrer having been overruled, the answer stands as before, and the statutory denial of new matter therein alleged still applies. The order appealed from is affirmed. All the Judges concur.