Opinion
Civ. No. 1570.
September 1, 1915.
APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. H. Z. Austin, Judge.
The facts are stated in the opinion of the court.
E. A. Williams, for Appellant.
Royle A. Carter, in pro. per., and Thomas F. Lopez, for Respondent.
This appeal is presented upon the judgment-roll alone, and is from the judgment and order denying defendant's motion for a new trial.
The defendant asserts that the trial court committed error in sustaining plaintiff's demurrer to its answer and counterclaim, and that for this reason the judgment against it must be reversed. But the defendant having filed an amended pleading after the demurrer to its original pleading was sustained, and the case having thereupon gone to trial and judgment, it must be held under the authorities in this state that it waived any error the court may have committed in so ruling. It is a well recognized rule that an amendment to any pleading after a demurrer is sustained thereto is a waiver of the right to object to any error in the sustaining of such demurrer. ( Ganceart v. Henry, 98 Cal. 281, [33 P. 92]; Brittan v. Oakland Bank of Savings, 112 Cal. 2, [44 P. 339]; City of Plankinton v. Gray, 63 Fed. 416, [11 C.C.A. 268]; Prescott v. Puget Sound Co., 31 Wn. 177, [71 P. 772].)
The judgment and order are affirmed.