OPINION ON REHEARING.
Per Curiam:Since the above opinion was filed the defendants have moved this court for a rehearing of the case, on the ground, among others, that this court has no power, after overruling defendants’ demurrer to the complaint, to direct the entry of a judgment for the plaintiff in the court below, but should have remanded the cause with directions to permit the defendants to file their answer to the complaint, notwithstanding they made no request of either court in that respect. We do not fully concur with the able counsel on this subject.
The record shows that the defendants’ demurrer to the plaintiff’s complaint was sustained in the court below: The plaintiff elected to stand upon his complaint, and refused to plead further, and the defendants elected to stand upon their demurrer, without filing an answer. Thereupon the court rendered judgment against the plain*429tiff, and directed execution to issue tberefor. From such judgment the plaintiff appealed to this court, asking a reversal of the same, and that this court direct a judgment in his favor. No request was made by defendants that they be allowed to file an answer to the complaint in case the demurrer was overruled; nor was the demurrer withdrawn. This court overruled the demurrer, set aside the judgment of the court below, and directed a judgment for the plaintiff, holding that as the facts were not in dispute, but were admitted, that the plaintiff was entitled to judgment thereon, it would seem unnecessary to send the case back for a new trial.
After the appeal this court had jurisdiction of the case, and under Sec. 655 R. S. 1898, power “to reverse, affirm or modify the judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.”
A similar question arose in an equity case in Vermont, (Bailey v. Holden, 50 Vt. 31) the court said: the defendants “having chosen to rest their defense upon the facts confessed by the demurrer, and carried the experiment to the last extremity, it was regarded unwarrantable to allow the litigation and the decision upon it to go for nothing, and permit the cause to be put back as it was upon the filing of the bill, where the only reason assigned for it, was, that ‘defendants’ solicitors had erred in their judgment of the law.’” Stewart v. Flint, 57 Vt. 216 (top paging).
In Deloach, et al v. Neal, 5 Ark. 344, it is held that where a demurrer to a complaint is overruled it may regularly be followed by judgment; that the court is not bound to enter respondeat ouster; that if the defendant does not ask to plead over, the judgment is necessarily final.
In Lowrey v. Andrews, 30 Ill. App. 521, it is held that *430when a demurrer to a declaration is overruled, if the defendant desires to plead over, he should ask leave to' withdraw his demurrer, and then plead; that unless the demurrer is withdrawn it remains of record as an admission of the facts alleged in the complaint, and the failure to withdraw it is an eléction to abide by it and justifies , a judgment on the demurrer.
In McNasser v. Sherry, 1 Colo. 12, it is held that upon overruling a demurrer to a declaration, if the defendant does not ask to plead, judgment should be entered, and damages may be assessed by a jury.
In the 6th Ency. Pl. & Pr. p. 366, it is said: “If after a demurrer is overruled the demurrant fails to ask leave to plead over, or answer, and abides by its demurrer, the submission of the case on demurrer is a final submission, and judgment thereon is final.” Fisher v. Gould, 81 N. Y. 228.
An examination of the authorities cited in 6th Ency. PL & Pr., will conclusively show that the order made in this case was in strict accord with the practice in this and other states on this subject.
The facts stated in the complaint, .and admitted by the demurrer, formed a proper basis for a judgment for the plaintiff on appeal to this court, and we-have been cited to no authorities to the contrary. It was doubtless within the discretion of this court to remand the case with directions to permit the defendants to plead over, even though no such request was made by counsel, provided the demurrer was withdrawn. The withdrawal of the demurrer was within the discretion of the party filing it. Its withdrawal could not be compelled by the court, and while it remains, it is an admission of the facts alleged in the complaint demurred to. The election to stand upon their demurrer was equivalent to a refusal to plead over, and to abide by the final result, even to judgment.
*431It could hardly be just to a plaintiff, on this record on appeal, after being subjected to a protracted and expensive litigation, and after it had gone to final decision in the Supreme Court upon such a defense as the defendants elected and chose to mate, and upon which they insisted and stood in both courts, and after final judgment was entered against them upon the admitted facts, to allow the decision upon the whole question to go for nothing, so far as reaching the real justice of the contention is concerned, and allow the case to be placed back as it was upori the filing of the complaint in the first instance.
The respondents also on their motion for a rehearing present their answer to the complaint, and ask to be allowed to file the same in the court below and to make their defense thereunder. In effect, they now waive their demurrer, and ask to plead over. Because this is the first time this precise question has been before this court and counsel may have been surprised at the holding thereof, and because the answer sets up that which may be a meritorious defense, this court, acting within the exercise of its discretionary power, will grant the request made by the respondents and modify the former order of this court, so that it shall read as follows: '
It is ordered that the defendant’s demurrer to the plaintiff’s complaint be overruled, and that the judgment of the district court be reversed and set aside, with costs of both courts, and the case is remanded with directions to permit the respondents to file their answer- to the complaint on such terms as may be just, and proceed with the hearing of said cause. In other respects the motion for a re-hearing is denied and overruled.
I concur in permitting the respondents to file their, answer, and in remanding the case for further proceedings.
Bartch, O. J.