Wilson v. McIntire

Reed, J. The only point urged by counsel is that defendant by answering waived tbe demurrer, and that it was not competent for the court, after tbe answer was filed, to pass upon tbe questions raised by the demurrer. We need not determine whether the indorsement on the answer, that it was filed subject to the demurrer, had any effect. The court, in the exercise of the discretion with which it is clothed, might have permitted the withdrawal of the answer, and the filing of the demurrer. What was done was but the equivalent of that; and we do not see how any of plaintiff’s rights could have been prejudiced by the practice adopted by the court. Affirmed.