On Motion for Rehearing.
It is insisted in the motion for rehearing, in addition to the other criticisms of the original opinion herein, that this court erred in holding that the general demurrer to plaintiffs’ petition was properly sustained, for the reason that the plaintiffs were permitted to amend their original petition and filed same in the cause, and that this superseded the defendant’s general demurrer, as contained in its original answer.
We cannot sustain this contention. In the first place, the trial court refers to a general demurrer in the judgment, and the presumption is that such demurrer was before him, but, if not, then we hold that, there having been no new cause of action asserted in the amended pleading, the original an-, swer and the general demurrer therein contained were properly applied to the plaintiffs’ amended petition. The answer replying to the original petition was not rendered of no effect by the filing of an amended petition; the cause of action not having been changed and a new cause asserted by said amended pleading. It was not obligatory to file another answer to the amended petition, and the defenses set up in the answer to the original petition could be urged without amendment to the amended petition. Byers et al. v. Carll, 7 Tex. Civ. App. 423, 27 S. W. 190, 191. See, also, El Paso Times Co. v. Fuller et al. (Tex. Civ. App.) 215 S. W. 113, 117.
The original answer containing the general demurrer, it was not improper for the court to consider same in passing upon the amended petition.
Believing that the original opinion was correct, we overrule the motion for rehearing.