Enright v. Midland Sampling & Ore Co.

. Chief Justice Gabbert delivered the opinion of the court. By taking leave to, and filing an amended complaint, the plaintiff waived any error committed by the court in sustaining the demurrer to the first amended complaint. — Perrigo G. M. & T. Co. v. Grimes, 2 Colo. 651; Heaton v. Myers, 4 Colo. 59; Hurd v. Smith, 5 Colo. 233; Rockwell v. Holcomb, 3 Colo. App. 1. . For this reason, the alleged error of the court in sustaining the demurrer cannot be reviewed here. There are exceptions to this rule, but on the questions presented by this ease, it does not fall within any of such exceptions. The right to amend a complaint when leave is granted for that purpose, does not contemplate that the averments of the original shall be practically restated. When an amended complaint is, in effect, but a repetition of the one which it purports to amend, a motion to strike for that reason is well taken. — Heaton v. Myers, supra. A comparison of the two amended complaints discloses that the latter was but a repetition of the former. The fact that in the latter all causes of action were withdrawn against the railway company was not a material change, for the reason that the demurrer interposed to the first amended complaint raised no question with respect to the misjoinder of parties defendant. . There was no difference in the two as to the statements of ultimate facts, although evidential matters were given in somewhat different and greater detail. This, however, was not a material change. — Bush v. McMann, 12 Colo. App. 504. The court did not err in sustaining the motion to strike. The motion of the plaintiff to strike the motion interposed by the defendant was not well taken. We [344] do not approve the practice of filing a motion to strike a pleading simultaneously with a demurrer thereto, hut the plaintiff was not prejudiced by that course in this case. The motion of defendant was properly sustained. The plaintiff cannot complain of a proceeding merely irregular, which did not injuriously affect his rights. — Kindel v. Lith. Co., 19 Colo. 310. The judgment of the district court is affirmed. Affirmed. Justices Guntee and Maxwell concur.