Stephenson v. Parsons

WALKER, P. J. The only errors assigned are the rulings of the court in sustaining demurrers to counts 1, 2, 3, 1, 5, and 6 of the complaint. After those rulings. were made, the complaint was amended by a separate paper, the first paragraph of which was as follows: “Now come the plaintiffs in the above-styled cause, and ask leave of the court to amend their complaint by striking therefrom the original com [617] plaint as filed, viz., count 1, and also the counts added thereto by way of amendment, viz., counts 2, 3, 1, 5, and 6, and to substitute therefor as the complaint in this cause the following counts, designated as counts A and B.” This was an exercise of the plaintiff’s statutory right (Code, § 5367) to have his complaint amended by striking out counts thereof. The counts so stricken were put as completely out of the case as if they had never been filed. The plaintiffs cannot complain of rulings on demurrers to pleadings which they themselves voluntarily abandoned, substituting other counts, demurrers to which were overruled. Affirmed.