dissenting.
I am unable to concur in the majority opinion overruling defendant’s application for a rehearing. I do not say plaintiff’s demurrers to defendant’s answers should not have been sustained, and shall not discuss that proposition, but I do insist the rule of practice announced is not in harmony with the spirit of our code, and is not sustained by authority. A demurrer to a separate affirm*224ative defense'in an answer admits, for the purposes of the case, the truth of all facts well pleaded therein, and the court in passing upon that pleading will consider the separate defense as though it were the only answer in the case. Fisk v. Reser, 19 Colo. 88. If the demurrer is sustained, the defendant in effect is informed that the time of the court will not be taken up in hearing evidence upon the issues joined by the petition and that part of the answer. The defendant may then plead over or stand upon his answer. If no other defense is stated and the defendant refuses to further plead, the plaintiff is entitled to a judgment on his petition. If other defenses are pleaded, the trial will proceed upon the issues thereby joined, and, if the plaintiff prevails, defendant may have a review in the appellate court of the ruling on the demurrer as well as upon his other defenses. The defendant may waive the error in sustaining a demurrer to his answer. He may do so by amending his answer so as to state all of the facts contained in the original defense and such other allegations as will cure the objections raised by the demurrer. He may do so by pleading another defense repugnant to, and inconsistent with, the one • to which a demurrer was sustained. But, if he merely amends his answer by setting up other defenses- not inconsistent with the one to which a demurrer has been sustained, he should be permitted, if defeated in the loAver court, to present to the appellate court the ruling of the trial court whereby he has been prevented from proving facts Avhicli he contends will defeat plaintiff’s claim. In other words, if the ruling of the trial court compelled defendant to so frame his answer that he could not prove the facts pleaded in the defense to which the demurrer was sustained, and those facts constitute a defense to the-* action, the judgment of the district court should be reversed, notwithstanding an amended ansAver has been filed stating another and distinct defense not repugnant to the one contained in the ansAA'er held bad on demurrer. Knox County Bank v. Lloyd's Adm’rs, 18 *225Ohio St. 353. McIlroy v. Buckner, 35 Ark. 555, is also directly in point. The distinction made between the instant case and Washburn v. Roberts, 72 Ind. 213, and Folsom v. Winch, 63 Ia. 477, is technical, and not convincing.
In considering the principle contended for by the plaintiff in the case at bar, Mr. Justice Beck in Ingham v. Dudley, Adm’r, 60 Ia. 16, 24, said: “Counsel in support of their position rely upon the general rule that a party whose pleading is held bad upon demurrer waives the error of such a ruling by pleading over. * * * A little reflection will make it plain that the rule is not applicable to the case under consideration. It reaches a case where a party, by pleading over, supplies omissions or cures defects in his pleading pointed out by the demurrer. * * * A defendant may plead as many defenses as he may have. * * * He may add to his answer by way of an amendment new defenses at such times and in such manner as may be permitted by the court. If a defense pleaded be held insufficient upon demurrer, the defendant may, with leave of the court, set up another, and by doing so he will not be regarded as waiving the error in the ruling sustaining the demurrer.” It seems to me that the logic of the Arkansas, Ohio and Iowa courts is unanswerable and controls the case at bar.
The cases cited in the majority opinion are not in point. In Ganceart v. Henry, 98 Cal. 281, a demurrer to a complaint had been sustained. Subsequently an amended and amplified complaint was filed stating with greater particularity the cause of action set forth in the original complaint. The appellate court properly held the error in sustaining defendant’s demurrer, if any had been committed, was waived by plaintiff filing the amended complaint. In Dunlap v. Chicago, M. & St. P. R. Co., 151 Ill. 409, plaintiff demurred to pleas numbered one and two filed by defendant to the petition, and the *226demurrer was sustained. No exception was taken to the ruling,- but defendant pleaded over, and it was held he 1 hereby Avaived any error committed by the circuit court in sustaining the demurrer. The judgment of the-appellate court reversing the circuit court is not based upon the point herein discussed, nor does it appear that in pleading over all essential facts contained in the first and second pleas Avere not set out in the third, fourth and fifth pleas subsequently filed. In Brown v. Brown, 71 Neb. 200, and in Worrall Grain Co. v. Johnson, 83 Neb. 349, a demurrer to the petition had been overruled, and it was held in each case that by subsequently answering the defendant waived any error in the ruling upon his demurrer.
It is logical and reasonable to hold that a defendant waives error by pleading over to a petition, because the demurrant is not deprived of any defense he may have to the action. If the defendant amends a defense to Avhich a demurrer has been sustained, he still preserves his defense, and, if after such a demurrer has been sustained he files an ansAver repugnant to the original one, he may Avell be held, to have abandoned the first defense. But to solemnly adjudge the filing of a separate and consistent defense in an amended ansAver, without reference to that other defense AAdiich the court has held bad on demurrer, is a Avaiver of the first defense is, it seems to me, a long step baclnvard and a sacrifice of substance to form.
The former judgment of the court should be vacated, and the case determined on its merits.
Sedgwick and Lettcn, JJ., concur in this dissent;