28 Minn. 28 | Minn. | 1881
This was an action for slander. The complaint is that, at a certain time and place, “defendant, in the presence and hearing of Clement Schroeder and a number of other persons, mali
The respondent makes the point that the appellant, having himself caused the judgment to be entered, is estopped from appealing from such judgment. There is nothing in this point. Either party may cause judgment to be entered in accordance with the verdict. The defeated party may cause this to be done so that he may be placed in position to take his appeal.
The only other question to be considered is, whether the court erred in excluding the evidence offered by plaintiff to prove the allegations of the complaint. It is unnecessary to consider, in detail, the objections made by defendant to the admission of this evidence. The offer of plaintiff was simply to prove the allegations of his complaint. There could be but one ground on which such evidence could be properly excluded, and that is the insufficiency of the complaint. To exclude it on any other ground, under the circumstances, would necessarily be error. It, therefore, is only necessary to consider whether the complaint, on its face, states a cause of action. We think it does..
But, even if the complaint is defective in this respect, the allegations of the answer would cure it. The answer admits that plaintiff and defendant met, at the time and place alleged in the complaint; that plaintiff addressed to him then and there certain abusive words; and that whatever was said by him to plaintiff then and there was spoken in the heat of passion. This, in substance, is repeated more than once in the answer. Taking the whole answer together, it clearly indicates, and in substance alleges, that whatever language was used by defendant, on the occasion referred to, was addressed to plaintiff. It is a settled rule of pleading that if essential averments are omitted in the complaint, but are supplied by the answer, the defect in the complaint is cured. Bennett v. Phelps, 12 Minn. 326;
Judgment reversed, and new trial ordered.
Cornell, J., owing to illness, took no part in this case.