[Piled March 7, 1892.]
ON Rehearing.
Per Curiam.After the time for presenting a petition for rehearing had expired, respondent’s counsel filed a motion and affidavit, calling the attention of the court to the fact that among the journal entries in the record is one to the effect that all that part of the amended answer in relation to a settlement is stricken out; but there is no motion on file asking the court to make such order, nor is that part of the answer marked in any way so as to show that the same was stricken out or intended to be. There is a motion on file to strike the whole answer from the files, and that is the only motion directed against the answer.
It may be well doubted whether the court has the power to order matter to be stricken from a pleading after it has been filed, without a motion specifying the same, where the same is respectful in its language; but we do not find it necessary to enter upon that question. The plea of payment is contained in two parts of the answer, — a case of redundancy, — but neither is denied. There is no attempt to deny the one pleaded in connection with the' fact of settlement, and the attempted denial of the other is in such form as to amount to an admission of the truth of the plea under the rules of pleading prevailing in this state. The authorities cited from California and elsewhere on this subject are inapplicable here, or at least the principle they announce has never been adopted in this state. A plea of payment in the answer is new matter, and must be denied or it stands admitted. The plaintiff cannot, by alleging in his complaint that no payments have been made, antici*502pate this defense, and thus relieve himself from the necessity of replying to it, when it appears in the answer. Though this application is out of time and irregular, we have thought proper to say this much to show that the result would have been the same had it been regularly filed.
We find no cause to change the judgment already rendered.