Frank v. Bush

The defendant interposed a demurrer to the complaint, whereupon the plaintiff, without waiting till the defendants’ time to amend had expired, moved for judgment upon the demurrer. The day before that named for the argument thereof, the defendants served an answer as an amended pleading. This they had the right to do (Robertson agt. Bennett, 1 Abb. N. C., 476). The defendants having amended within the time allowed by law for that purpose, the answer superseded the demurrer (4 How. Pr. 174; 3 Bosw., 200; 5 Duer, 654; 30 How. Pr., 1). So that there was no demurrer upon the record at the time…