Phillips

(after stating the facts as above).

The parties will be designated as in the court below.

The defendant company contends that the amended complaint did not state facts sufficient to constitute a cause of action against it. This objection was made by the defendant company in the court below by a general demurrer to the amended complaint, which was overruled. The defendant Hasey did not join in this objection, and the defendant company did not stand on its demurrer, or answer by leave of the court.

Section 91 of the Alaska Code of'Civil Procedure ( 31 Stat. 346 ) provides that: “After the decision upon a demurrer, if it be overruled, and it appears that such demur *847 rer was interposed in good faith, the court may, in its discretion, allow the party to plead over upon such terms as may be proper.”

The defendant did not ask or obtain leave to plead over, but answered the original and amended complaint without leave and presented the issues of fact upon which it asked the court to determine the case on the merits. The general rule is that this amounts to a waiver of the objection to the complaint. Teal v. Walker, 111 U.S. 242, 246 , 4 S.Ct. 420 , 28 L.Ed. 415 ; Southern Pacific…