RESPONSE TO PETITION EOR RE-HEARING.
Opinion by
Beatty, J., full Bench concurring.In this case the Court rendered a decision reversing the judgment of the Court below. The appellant, in whose favor the case was decided by this Court, now asks for a re-hearing in order to obtain a modification of the order made by this Court on reversing the judgment.
Whilst the present order, after reversing the judgment in the Court below', directs that defendant shall be allowed to amend his answer, the appellant seeks to have the order made directing the Court below to enter judgment for plaintiff on the pleadings. We see no reason for this. The regular practice, when a defendant puts in a defective answer, would be to demur to that answer. If the demurrer is sustained, then as a matter of course the defendant is allowed to amend. In this case, instead of demurring to the ansu'er the plaintiff moved for 'judgment on the pleadings. This is hardly the proper course where the answer is merely defective in form or manner of denial, as in this case. When the answer admits all the facts necessary to entitle the plaintiff to a judgment, this motion would be proper enough.
And such admission might be made either directly in language or by a total failure to deny or to state facts ’ inconsistent with the allegations of the complaint. But when there is an attempted denial of a fact necessary to sustain the plaintiff’s action, however imperfect that denial may be, it should be reached by demurrer.
The plaintiff cannot be placed in a better position by having made a rather irregular motion, then he would be if he had demurred. It would be improper to modify our judgment, as requested.
*330Petitioner further asks, if we will not make the order for judgment on the pleadings, that we require the defendant to pay the costs of this appeal as a prerequisite, a condition precedent to his being allowed to amend his answer and make his defense in the case. We see no reason for such a course. There is nothing in the case to show us that defendant .is making a sham defense. For aught we know, his defense may be a perfectly good one. We are not disposed to deprive him of the opportunity of making his defense because perchance he may not have the ready money to pay the costs of this appeal.