Peterson v. Swanson

167 N.W. 389 | N.D. | 1918

Robinson, J.

When this case was called for trial and a witness sworn, the court sustained an objection to any evidence on the ground that the complaint does not state a cause of action. Motions to amend were objected to and denied, and judgment was given that the action be dismissed, without prejudice to an action at law for damages.

In this state the distinction between actions at law and suits in equity áre abolished. There is but one form of action for the enforcement of private rights and the redress of private wrongs, which is named a civil action. There is no form of pleading, and yet the basis of every action is a complaint, which should state in a plain and concise manner the facts constituting a cause of action.

When a complaint wholly fails to state a cause of action, the proper practice is to demur to it, so that before trial the court may pass upon the sufficiency of the complaint and settle the issues to be tried. Objections to a pleading merit no favor when first made on the trial of the case.

In this case the complaint is not well framed, and yet it shadows forth a cause of action against defendant Swanson. It gives this impression, that on November 21, 1912, the plaintiff and John O. Melberg owned a threshing outfit worth $2,000, on which they made a chattel mortgage to Ole Larson to secure $265, and interest. Ole Larson transferred the mortgage to H. D. Peed, and the mortgagor, John Mel-berg, transferred his interest in the property to defendant Swanson, who took the place of the mortgagor, so that he and the plaintiff became common owners of said mortgaged property. That on October 31, 1914, under a power of sale in said mortgage, H. D. Peed caused the same to be foreclosed by a sale of the property to himself for the sum of $537.50. And that within five days after the sale, defendant Swanson, claiming under a transfer by said mortgagor, redeemed the property from the sale by paying to II. D. Peed the sum of $537.50. That under such redemption, which was merely a payment of the mortgage, defendant Swanson now wrongfully claims to own said property, and denies that the plaintiff has any title or interest therein. That for nearly two years prior to the sale Swanson had used the property to do threshing for Helen Morton and for others, and from such use he had received large sums of money, amounting to the sum of $1,500, or more, the amount being unknown to the plaintiff; and that from the money so received he promised and agreed with the plaintiff to pay said mortgage debt, and to protect the property against any foreclosure, and to account for and pay to the plaintiff his share of said money, —all of which he has failed to do. Such is the general outline of the cause of action as shadowed forth by the complaint. There is no apparent reason why Helen Morton should be a party to this action. The law does not favor a trip-up practice or the denial of legal rights and remedies because of defects in a complaint which may be amended. Hence, it is ordered that the judgment be reversed, with costs of the lower court to abide the event of the suit, and the case remanded for trial on an amended complaint to be served within thirty days after the filing of the remittitur. Appellant will recover costs on this appeal.

Reversed and remanded.