Heid

(after stating the facts).

The errors relied upon by the defendant are the action of the trial court in sustaining plaintiffs’ demurrer to defendant’s answer, and in entering the default of the defendant for failure to amend his answer. . Defendant’s answer consisted of two parts': First, a denial of the material allegations of the complaint; and, second, a defense setting up new matter.

The demurrer to the answer was general, oh the ground that it did not state facts sufficient to constitute a defense. Section 68 of the Code of Civil Procedure of Alaska (Carter’s Codes, p. 158, 31 Stat. 343 , c. 786) provides that “the plaintiff may demur to an answer containing new matter when it appears upon the face thereof that such new matter does not constitute a defense or counterclaim.” This provision is identical with that of section 78 of the Code of Civil Procedure of Oregon, from which Code the Alaska Code was copied. In Toby v. Ferguson, 3 Or. 28 , the Supreme Court of Oregon had before it an action for false imprisonment. The defendant had denied some of the allegations of the complaint, and had made further answer. The plaintiff demurred to this further answer. The court found…