Defendant in error has filed what it calls: "Application for Rehearing and Modification of Opinion." It requests that a rehearing be granted, or that the opinion of the court be modified to permit the defendant in error to file its answer and go to trial upon the merits. The modification of the opinion which it requests is the elimination therefrom of the direction of the trial court to set aside its judgment and to enter a judgment of ouster; and in lieu of this direction that we enter an order that defendant be given the right to file its answer and be heard upon the merits as to the facts alleged in the complaint.
In a case where final judgment of dismissal is rendered after the trial court has sustained the defendant's general demurrer to the complaint, it is not ordinarily good practice for the reviewing court, on reversal, to direct the appropriate judgment. And this is so, for the defendant, in such a case, should be given the opportunity to file an answer and put in issue the statement of facts set up in the complaint.
In support of this petition the defendant here relies upon repeated rulings of this court and the Court of Appeals that a party filing a demurrer which has been overruled may, as matter of right, plead over. Defendant may not have overlooked the fact, but has failed to refer to it, that in this case the defendant's demurrer to the complaint was not overruled, but was sustained, and the action was dismissed, as the plaintiff did not desire to amend the complaint. But, assuming under the facts as stated that the defendant is entitled now to be heard to object to our direction of the judgment instead of remanding the cause for further proceedings consistent *Page 316 with the opinion, we are satisfied that defendant in error is not entitled to have the opinion modified. Therein we first demonstrated, as we think, that plaintiff's complaint set out all the essential facts which show that the defendant was, and is, engaged in the practice of dentistry in Colorado without a license, and, therefore, the judgment of the trial court dismissing the action was wrong. We also said that the method which the defendant adopted and pursued in practicing dentistry was by dentists employed by it who, as the defendant repeatedly asserted in its briefs, were duly licensed and qualified dentists. In referring to these contentions of the defendant in its briefs, we said in the opinion that if such were the facts, which were negatived by the complaint, the defendant should have filed an answer so asserting. But immediately following this statement we said that our observation might be considered a mere technicality and we, therefore, proceeded to determine the case which both parties submitted for decision and which they argued in their briefs, which, as thereby made, may thus be stated: "Is it lawful for a private corporation, which has not, and is unable to acquire, a license to practice dentistry in Colorado, to engage therein by and through licensed dentists whom it employs to do for it, and in its behalf, dental work for patients whom, by advertising and other methods, it has procured?" Defendant asserted in its briefs that this method was lawful; that its employees were duly licensed and authorized under the statutes of this state to practice dentistry therein. Such was the issue that defendant of its own accord argued and submitted to us for decision, and this issue we determined against its contention, although we might have refused to pass upon it. But disregarding the defective record, and though a general demurrer was filed by the defendant, instead of an answer and evidence responsive thereto, and waiving the technicality and, for the *Page 317 purposes of the opinion, conceding that the facts as claimed by the plaintiff were present in this record, we then proceeded to determine the case at defendant's own insistence on the theory that the facts before us showed that defendant's practice of dentistry, or, if it prefers other words, its method of operating a dental parlor, was to secure applicants desiring dental treatment and getting them to its place of business and there treating them by licensed dentists whom it employed for the purpose. Therefore, we say that we accepted as before us on the defendant's own submission, as the real issue for determination, whether defendant has the right thus to practice dentistry in Colorado. We held that it had not. The ultimate facts as the defendant claims them to be were before us on which that right depends. If our opinion were modified as defendant requests and the cause be remanded for a new trial and it be given an opportunity to answer, it would allege and prove only the ultimate facts which we assumed were before us at the hearing. Defendant does not in this petition say that it has any other defense than the one that it has already submitted, and which we decided upon the basis of the ultimate facts as the defendant claimed them to be.
We therefore deny this petition for rehearing. *Page 318