83 N.W. 7 | N.D. | 1900
This is an appeal from a judgment rendered and entered by the District Court of Stutsman county dismissing plaintiff’s case and for costs. We have reached the conclusion, from an examination of the judgment appealed from, that it -must be reversed for an irregularity which appeared upon its face, which consists entirely of an error of procedure. The judgment recites that the issues of fact came on for trial at the January, 1900, term of said court; that after a jury was impaneled to try such issues a witness was sworn on behalf of the plaintiff. At this point the defendants, by their attorney, E. W. Thorp, objected “to the introduction of any evidence on the part of the plaintiff, for the reason that the complaint does not state facts sufficient to constitute a cause of action.” The judgment further recites that after hearing arguments thereon “it is hereby ordered and adjudged by the court that the objection of the defendant herein be, and the same is hereby, sustained by the court, and further ordered that the above-named plaintiff’s case herein be dismissed on said objection, and defendants have and recover costs and disbursements,” etc. The judgment does not purport to be based upon anything else than the objection to the introduction of evidence which we have quoted. Its recitals preclude any other view, for it is expressly stated therein that it is based upon that .objection, which is recited at length in the judgment. This form of an objection to evidence has been repeatedly condemned by this court as not good. Bowman v. Eppinger, 1 N. D. 21, 44 N. W. Rep. 1000; Chilson v. Bank, 9 N. D. 96, 81 N. W. Rep. 33; Schweinber v. Elevator Co., 9 N. D. 113, 81 N. W. Rep. 35. In commenting on -an objection couched in the same language as that in the ease at bar, in the case last cited this court said: “It points out no defects in the complaint, gives the court no opportunity to order an amendment, and gives plaintiff no opportunity to amend voluntarily. At that stage of the case the court cannot stop all proceedings until it can critically examine a complaint, however long, however involved and technical, to see that it contains every required averment. If a defendant elects to defer his attack upon the pleading until the taking of testimony is reached, he must make his objection specific.” Our views remain unchanged on this point. The objection interposed was bad. But had it sufficiently pointed out specific defects in the complaint, and been properly sustained, yet it would not furnish a basis for dismissing the case. The objection merely calls for a ruling upon the admission of testimony, and if the objection is sustained the case is still pending for further proceedings. If the