On petition for rehearing, it is contended that this is not an action for damages for trespass to real estate, but an action on the case, and hence that the three-year statute of limitations does not apply; that the case falls within the operation of the four-year limitation.

There was no demurrer to the plea of the three-year limitation, but the plaintiffs interposed a replication thereto, as follows: "That the statute of limitations in this cause is not three years but four years."

To this replication the defendant demurred on the following grounds: "1. It alleges no fact. 2. It only alleges a conclusion of law. 3. The issue sought to be raised should be presented by demurrer."

This demurrer was sustained by the court, and properly so. The court in the order sustaining the demurrer, allowed plaintiffs until the following rule day to plead further. Plaintiffs did not see fit to do so. The court on motion *Page 370 afterward rendered final judgment for defendant, in which it was recited that "the plaintiffs not desiring to plead further, but failing and refusing so to do; now, therefore, it is ordered and adjudged," etc.

Thus, even if there be any merit in the contention of plaintiffs in error, they did not properly present the question in the court below, and though the court gave them another opportunity to do so, they either declined or failed to take advantage of it. Under these circumstances, we do not think we would be warranted in reversing the case on this ground, even if the fundamental basis of the contention of plaintiffs in error be well founded, which is by no means clear. See 38 Cyc. 1029.

Rehearing denied.

TERRELL, C. J., AND ELLIS, J., concur.

WHITFIELD, P. J., AND STRUM AND BUFORD, J. J., concur in the opinion and judgment.