Evinger

The controlling question involved upon this appeal relates to the sufficiency of an amended answer filed by defendant pending the hearing of a motion for judgment upon the pleadings. This amended answer was filed before the trial of an issue of law raised by a demurrer to the original answer. The effect of filing such amended answer, if properly filed, was.to supersede the original answer. (Kuhland v. Sedgwick, 17 Cal. 123 .) The permission to amend a pleading once as of right before the trial of such issue is authorized by section 472, Code of Civil Procedure. Were it even conceded that the motion for a judgment on the pleadings performs the same office as a demurrer, and therefore the section should be construed as only permitting such amendment as of right before an issue of law is heard under a motion presenting the issues which would be involved in a general demurrer, nevertheless, it appears from the record that the amended answer was on file before such motion for judgment was disposed of. A stipulation was filed that the motion was submitted upon briefs thereafter to be filed. The effect of such stipulation is a submission upon the filing of such briefs. The amended answer…