This is a motion to compel plaintiff to receive an amended answer. The answer originally did not set up a counterclaim. Within twenty days thereafter, the defendant served an amended answer which the plaintiff refused to receive.
While such an answer was not demurrable, the defendant had no right to amend of course, inasmuch as there was no reply to it, but since the amendment of the Code, permitting a demurrer to such an answer to be put in, the rule of amendment must be considered as extended to such answers.
By section 172 of the Code, after a demurrer to a pleading, the party may amend within twenty days after the service of such demurrer; and that section must now be considered as applicable to answers, as well as complaints, which are demurred to. It would be very inconsistent to say -that a. defendant may amend his answer after demurrer is served, but may not, on discovering his error before demurrer, servo such amended pleading and thereby render the demurrer unnecessary.
The motion is granted, defendant's costs to abide the event.