Alery v. ALERY, JR., ET UX.

LUSK, J. (dissenting).

There can be no question of the power of the court to make the order granting the defendants judgment on. the pleadings. The second amended answer was filed on December 7, 1950. The motion for judgment on the pleadings was served on counsel for the plaintiffs on January 17, 1951, and filed the same day. At that time no reply had been filed. Section 1-717, O.C.L.A., provides:

“If the answer contain a statement of new matter constituting a defense or counterclaim, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move the…