Howard v. Michigan Southern Rail Road

Sill, Justice. Section 172 of the Code which provides for the amendment of pleadings, of course, directs that such amendments shall be made without prejudice to the proceedings already had in the action. It has been suggested that this provision which is not found in the former rules of the court regulating amendments, was intended to change the former practice, so far as it required amended pleadings to be answered anew, in cases where they had been appropriately answered before amendment (1 Hill, 214; 5 Id., 556: 1 Wend. 16). It is not, however, necessary, at present to decide this question. The answer in this case has not been amended at all. The answer and demurrer are different pleadings (§ 149, 156 of the Code), and by the fact that they were on one paper, and in form connected, they do not lose their distinct character. An answer and demurrer to the same cause of action is irregular in practice, and the defendant might have been compelled to elect by which they would stand, although it seems in this case the plaintiff was willing they should have the benefit of both. The service of the paper called an amended answer, seems to have been a resort of the defendant’s attorney to get rid of his own demurrer. Whether he succeeded in this, it is not now my purpose to inquire, but it certainly did not affect the question of fact joined in the case; it amounted to nothing (so far as this question is concerned) more than the service of a second copy of the original answer. This certainly did not make it necessary for the plaintiff to serve his reply over again, and as the whole matter of the answer stands denied, the motion can not prevail. It is denied with costs.