Walker Ex Rel. Walker v. Burkham

OPINION By the Court, Taber, C. J.: In December 1944 a tort action was commenced' in the Second judicial district court, Washoe County, by Conrad H. Walker, and Conrad H. Walker, guardian ad *76 litem for David C. Walker, plaintiffs, against Bert Burk-ham, defendant. The alleged wrongs were committed against the person of said David C. Walker. Plaintiffs prayed judgment for damages as follows: 1. $1,500 for medical and hospital expenses; 2. $5,000 for the bodily pain, suffering, distress, and discomfort suffered by said David C. Walker; 3. $5,000 for permanent injuries sustained by him. In January 1945 an amended complaint was filed in said action by David C. Walker, by and through his guardian ad litem, Conrad H. Walker, plaintiff, against said Bert Burkham, defendant. In this amended complaint plaintiff prayed judgment for damages as follows: 1. $6,500 for the bodily pain, suffering, distress and discomfort suffered by said David C. Walker; 2. $5,000 for permanent injuries sustained by him. Defendant demurred generally and specially to said amended complaint, and also moved the trial court to strike it from the files, and to strike certain specified portions thereof. The motion to strike the entire amended complaint from the files was made upon the ground that it was irrelevant, immaterial, redundant, and sham. The court did not rule on the motion to strike, but sustained the demurrer, at the same time giving plaintiff ten days in which to file a second amended complaint, or take such other action as he might deem advisable. Plaintiff declined to amend further, and the court, in April 1945, entered judgment dismissing the amended complaint. From that judgment plaintiff has appealed to this court, the appeal being taken on the judgment roll alone. Neither the original complaint nor said motion to strike was included in the record on appeal. After appellant’s opening brief had been served and filed, respondent moved this court for an order directing that said original complaint and motion to strike be included in the record on appeal. The motion is based upon the ground that it is necessary to include said papers in the record in order to enable this court to *77 determine whether the purported amended complaint constitutes an amended complaint, or whether it “is an entirely new action by a new plaintiff not mentioned in the original complaint.” January 16, 1946. 165 P. 2d 161. It is not deemed necessary to determine whether the original complaint and the motion to strike, or either of them, constituted part of the judgment roll. It would avail respondent nothing if both papers were included in the record on appeal. No contention was made in the lower court that the amended complaint was a new action by a new plaintiff not mentioned in the original complaint. Such a contention was not the ground or one of the grounds upon which defendant’s motion to strike the amended complaint from the files was based. Neither the alleged departure nor the change in parties plaintiff is a jurisdictional defect, and defendant, having demurred, cannot for the first time urge either of them on appeal. State v. District Court, 80 Mont. 97, 257 P. 1014; Groom v. Bangs, 153 Cal. 456, 96 P. 503; Ibach v. Jackson, 148 Or. 92, 35 P. 2d 672; 1 Bancroft’s Code Pl., sec. 621, p. 907, n. 8; 1 Ten Year Supp., Bancroft’s Code Pl., Pr. and Rem., sec. 720, p. 404, nn. 12, 14; 41 Am. Jur., “Pleading,” sec. 392 (first two sentences); Id., sec. 395, nn. 17, 20, 7; Id., sec. 396, nn. 10, 11, 12; 49 C. J. 832, note 84. Motion denied.