35 Am. St. Rep. 289 | Idaho | 1892
This action was commenced in the probate court of Elmore county on the thirtieth day of November, 1891. Complaint was filed on that date. On February 12, 1892, Wyman & Wyman appeared for the defendant, and demurred to plaintiff’s complaint, on the ground that it did not state facts sufficient to constitute a cause of action. On February 8, 1892, defendant appeared, and moved the court to dissolve the attachment issued herein, and release the property therefrom. On the twenty-third day of February, 1892, the probate court heard both the motion to dissolve the attachment and the demurrer, and overruled both. On the twenty-sixth day of April, 1892, the cause was removed tó the district court, and all further proceedings were had therein. It does not appear from the record whether the demurrer was presented to the district court or not; but, as the ground of the demurrer was that the complaint failed to state facts sufficient to constitute a cause of action, it may be taken advantage of at any stage of the action, and may even be objected to for the first time in the supreme court. An answer having been filed, the cause was tried before the court and a jury, resulting in a verdict and judgment for the plaintiff for the sum of $410, with, interest and costs. From this judgment the defendant appeals to this court.
It is also claimed that defendant introduced the contract of lease between the said defendant and the said Mueller; but the record shows that this evidence was introduced by the plaintiff upon cross-examination, and over the objection of defendant. This was not proper evidence of incorporation, because of the absence of the necessary averment. For these reasons the judgment must be reversed: and it is so ordered, and the attachment dissolved. Costs awarded to appellant.