Without inquiry as to the correctness of the ruling sustaining the first motion, wé are of opinion that *187the court erred in sustaining the motion to strike from the files the substituted pleading. It is urged that this pleading was filed in the case of Coffman v. Bacon, from which Ford had already been dismissed. This is but a technical and narrow view of the question. The main', action was Coffman v. Minton, and the substituted pleading by its caption shows clearly that that is the case in which it was filed. The pleading was filed in the only manner that it could be done under section 2992 of the Code. The first motion of the defendant Ford was not that he be dismissed as a garnishee, but simply that he be dismissed as a party from the pleading of plaintiff controverting the answer of Bacon. The effect of sustaining the motion was simply to leave the answer of Ford without any pleading controverting it. The plaintiff took issue upon the answer of Ford, within the time allowed by order of the court, but took issue.in a manner which the court held to be improper. In fixing the time within which the plaintiff should take issue upon the answer of the garnishees the court did not require the plaintiff at his peril to file a pleading unassailable by demurrer or motion. The plaintiff, upon the sustaining of the first motion, had a right to amend. He availed himself of this right at once, and, in .striking his amended pleading from the files the court erred.
Beversed.