Our former opinion in this case will be found in 85 Neb. 397, where the facts are correctly stated. The appellant has filed a motion for a rehearing and argument has been had thereon. It is conceded that the general rule as to the effect of filing an amended pleading announced in our opinion is correct, but appellant strenuously contends that this case comes within what may be considered an exception to that rule.
In support of this contention, our attention is first directed to the case of Hagely v. Hagely, 68 Cal. 348. That was an action in ejectment, and the defendant pleaded two separate and distinct defenses, one of which was a special plea of the statute of limitations in a single paragraph of the answer. A demurrer was interposed as to that defense, which was sustained. Defendant thereupon filed an amended answer, in which she again interposed a plea or pleas of the statute of limitations. It was contended by her counsel that the defense to which the demurrer was sustained was again set out in the amended answer. We think this contention was well founded. It was said by the court, however: “Where separate defenses are set up in answer, and a demurrer is sustained to one or more of such defenses, and the defendant subsequently files an amended answer, it will amount to a waiver of error as to such defenses as are pleaded anew in such amended answer, but not as to defenses to which the demurrer was sustained, and which are not again pleaded in the amended, pleading. In other words, it is not the new pleading which operates as a waiver, but the pleading anew of the same defense.” This statement as contained in the opinion is unsupported by reasoning or authority, and it appears from an examination of the whole case that the plea of the statute of limitations as contained in the several sections of the California code of civil procedure was the point upon which the decision turned. That this case is not con*221sidered by the supreme court of California as contrary to the general rule, see Ganceart v. Henry, 98 Cal. 281.
- Our attention is next directed to the case of Whalen v. Muma, 94 Ill. App. 488. That was an action upon a promissory note. In addition to the plea of non assumpsit in the usual form with an affidavit of merits, appellant filed two special pleas which were demurred to generally. The superior court sustained the demurrers to each of the special pleas, and granted leave to file additional pleas. In pursuance of such leave, an additional plea was filed. It will thus be seen at the outset that the defendant did not file an amended answer, but under the common law practice, which obtains in that state, he simply filed an additional plea as a part of his original answer. Reviewing this situation, the appellate court held that nothing appeared to indicate that appellant acquiesced in the decision sustaining the demurrer to his special pleas, or that he waived the error of which he complained, or did anything that could be so construed. The supreme court of Illinois, however, is committed to the rule announced by our former opinion, for in the case of Dunlap v. Chicago, M. & St. P. R. Co., 151 Ill. 409, 421, it was held that the defendant acquiesced in the decision overruling his pleas by having obtained leave to plead over, and by having filed three new pleas, and that this amounted to a waiver of error, if any, in the decision overruling his former plea.
Appellant also cites McIlroy v. Buckner, 35 Ark. 555, and it appears that it was there held: “The filing of an amended and substituted answer after demurrer sustained to a former one will not be considered as a waiver of the defendant’s objections to overruling the former, unless such intention appear or be inferred from the record. If the new defense be distinct from the former, and there is nothing to indicate his intention to abandon it, he may still rely upon it in' the supreme court.” That decision, however, turned wholly upon the point as to whether or not the defendant had abandoned, and thereby *222waived, the defense pleaded in his former answer. That the general fule prevails in that state, see Walker v. Wills, 5 Pike (Ark.) 166.
Our attention is next directed to Washburn v. Roberts, 72 Ind. 213. That that case is not in point is apparent, for it is there said: “A party, by amending one paragraph of a pleading, does not waive the exception reserved to a ruling upon a demurrer to another paragraph of the same pleading.”
Appellant also cites Folsom v. Winch, 19 N. W. 305 (63 Ia. 477). It was there said: “Where an answer containing a general denial, special defenses, and a counter-claim is demurred to, and the demurrer sustained, and the answer struck out, an amendment to the first paragraph of the answer, without reference to the counter-claim, does not amount to a pleading over, and the demurrer is not waived.” It will thus be seen that the defendant in that case did not file an amended answer, but merely filed an amendment to the first paragraph of the answer, and therefore that decision is not in conflict with our opinion in this case.
The record fails to disclose any intention on the part of the appellant in this case to rely upon the defense set forth in the fifth paragraph of the original answer. By obtaining leave to file, and by filing, an amended answer, in which no reference is made to the fifth paragraph of the original answer, or the defense attempted to be pleaded thereby, by filing a second amended answer without any reference thereto, by going to trial upon the issue which appellant thus elected to- make, and by failing to offer any testimony in support of that defense, the appellant must be held to have waived the error, if any, in sustaining the demurrer thereto. We are of opinion that his conduct amounted to a complete abandonment of the fifth defense set up in his original answer.
In Brown v. Brown, 71 Neb. 200, it Avas held that an erroneous ruling overruling a demurrer is error without prejudice, where the pleading assailed is afterwards *223amended, and the cause submitted and determined on the amended pleading. In Worrall Grain Co. v. Johnson, 83 Neb. 349, we said: “Where a party answers over after- an adverse ruling on his motion or demurrer, and goes to trial on the merits of an issue he has elected to join, he waives the error, if any, in such ruling.” That there may be exceptions to this rule, and that a pleader can easily bring himself within such exceptions by indicating his intention to do so in any suitable manner, is not to be denied. But we are of opinion that the case at bar presents no exception to the general rule.
Finally, it is contended that the question on which this case was decided was not presented or argued in the brief of either appellee or appellant, and that for this reason a rehearing should be granted. We think that the appellant is mistaken upon this point. We find in appellee’s original brief the following: “After this demurrer was sustained, the county attorney abandoned this answer and filed another answer which is a practical admission of the cause of action as set forth by the appellee in its petition. It is from the judgment rendered on this answer that this appeal is taken. The former answers having been abandoned, Ave understand the rule to be. that, having declined to rely upon any of these answers and by answering over, the exceptions are waived.”
For the foregoing reasons, the motion for a rehearing is
Overruled.