Marshall

The facts in this ease are, in all essential features, like the ease of Marshall v. Wentz, (No. 1388), ante p. 540, [ 153 Pac. 244 ], in which an opinion was filed October 8, 1915.

Upon the authority of that case the judgment is affirmed.

A petition for a rehearing of this cause was denied by the district court of appeal on November 10, 1915, and the following opinion then rendered thereon:

In this case a decision was filed, on October 11, 1915, as follows: “The facts in this case are, in all essential features, like the case of Marshall v. Wentz, (Civ. No. 1388), ante, p. 540, [ 153 Pac. 244 ], in which an opinion was filed October 8,1915. Upon the authority of that case the judgment and order are affirmed. ’ ’

We are satisfied with the above decision and opinion except in one particular. As counsel in his petition points out, it is true that the record in this case differs from the record in the Wentz case in this: In the Wentz case there was no amended answer and the motion for judgment on the pleadings was granted upon the complaint and answer. In this case, before the motion for judgment on the pleadings was granted, the original answer had been stricken out and an…