105 N.W. 721 | N.D. | 1905
Plaintiff recovered judgment in justice court for damages for the negligent killing of some cattle by the defendant. The original complaint averred that the cattle' were run over and killed by reason of defendant’s carelessness in the operation of its train. Before trial, and before defendants had filed any answer, the plaintiff was permitted to amend the complaint so as to allege that the negligence which caused the injury complained of was the fact that the defendant had neglected its statutory duty to keep in repair a fence erected by it on the line between plaintiff’s pasture and the railroad right of way. The defendant objected to the allowance of the amendment on the ground that the matter alleged therein was a departure from the original cause of action and constituted a wholly new and different cause of action, which the defendant was not prepared to meet. After allowing the amendment the justice continued the case to a subsequent date. On the adjourned day the defendant again appeared and renewed its objection to the amendment of the complaint, and the objection was again overruled. The defendant thereupon stated that he declined to file any answer in the case, and would stand on the objections theretofore interposed. The justice heard the plaintiff’s evidence and rendered judgment in his favor. The defendant appealed to the district court on questions of law, specifyifng as error the rulings of the justice allowing the amendment. The district court affirmed the justice’s judgment, and defendant thereupon appealed to this court.
Appellant admits that the same general rules prevail in justice court as in district court with respect to the" allowance of amendments, and we have recently so held in Morgridge v. Stoefer (decided at this term) 104 N. W. 1112. Appellant contends that it is never permissible to amend so as to add' to or substitute for the original cause of action a new or different one, and that the amendment in this case was a violation of that rule, because the original complaint averred neglect of a common-law duty, and the amendment alleged omission of a statutory duty. It is doubtless true,
The sufficiency of the facts pleaded to constitute a cause of action is questioned for the first 'time in this court. No error covering that point was specified in the notice of appeal from the justice’s judgment, and no objection to the sufficiency of the pleading was made in justice court. On appeal from a justice only those rulings can be reviewed which are specified as error in the notice of appeal. Section 6771a, Rev. Godes 1899. Without determining whether or not the sufficiency of a pleading is open- to question without proper specifications, if it discloses that no cause of action or defense is set forth, it is sufficient to say in this ease that the alleged insufficiency is a mere defective statement of the cause of action, rather than a failure to show any ground for recovery.
The judgment is affirmed.