
    MARY C. MYERS v. HARRIET M. GORDON, Administratrix, C. T. A.
    [No. 72,
    October Term, 1933.]
    
      Previous order modified February 7th, 1934.
    
   The opinion was delivered

per Curiam.

Since the filing of the opinion in this case, the appellee has filed a motion for a reargument in this court, and for a modification of the order of reversal without a new trial.

The case was submitted on brief by the appellee, and argued by the appellant, upon the theory (as then understood by this court) that the statements set out in the defendant’s plea of res adjudícala were not duly admitted for the purposes of the demurrer, but were true in point of fact, and would have been proven but for the action of the trial court in sustaining the demurrer to the plea and preventing the defendant from introducing evidence on that point; the effect of the opinion being to hold that, if the allegations of the plea were true, in point of fact, the plea constituted a complete bar to the action. It now appears, however, that the plaintiff (appellee) desires to controvert, in point of fact, the allegations of the plea; and this, of course, she is entitled to do, the demurrer to* the plea only admitting the truth of the allegations in the plea for the purposes of the demurrer.

The order of this court reversing the judgment without a new trial is erroneous, and should he modified. The motion for reargument will he overruled, hut a modification of the judgment of this court, as requested in the motion for reargument, is allowed, so that the judgment will permit a new trial.

The previous judgment or order of this court is: “Judgment reversed, without a new trial, with costs to the appellant.” This is hereby modified so as to read: “Judgment reversed, and a new trial awarded, with costs to the appellant.”  