
    Bell, Secretary of Banking, v. Borys, Executor, et al.
    
      
      Harry C. Hubler, for plaintiff.
    
      William B. Landis, for defendants.
    July 29, 1942.
   Eagen, J.,

To a writ of scire facias sur judgment defendants filed a demurrer in which plaintiff formally joined. This issue still undecided, defendants now admit the insufficiency of their demurrer and ask leave to file an affidavit of defense pleading payment of the judgment involved. Plaintiff strenuously objects to the request to plead over, contending defendants have had their day in court, are bound by their demurrer, and insists final judgment must be entered.

We believe this is a matter within the discretion of the court. In Covey et al. v. D. L. & W. R. R. Co., 6 Lack. Jur. 45 (1905), the learned Judge Newcomb in discussing the procedure upon demurrer, said (p. 46) :

“Where there is a formal joinder thus producing an issue on demurrer, final judgment follows as a matter of course when it is disposed of, unless the court in its discretion grants leave to amend or answer over as ■the case may be.”

Acting, therefore, within our discretion and concluding that the ends of justice will best be met by allowing defendants to plead on the merits if such a defense they possess, we now order this 29th day of July, 1942, that defendants and terre-tenants in the above-entitled case be given permission to withdraw the demurrer heretofore filed and are allowed 10 days from the date hereof to file an affidavit of defense.  