Bethel v. Robinson

The opinion of the court was delivered by Dunbar, J. — We think there was no error committed by the trial judge in overruling defendant’s demurrer. The complaint states the title of the cause, name of the court, name of the county in which the action is brought, and the — 447 — name of the parties to the action. It gives a plain and concise statement of the facts constituting the cause of action, viz., the execution of a promissory note in writing for the amount claimed, the execution of a mortgage, time of the maturity of.the note and its non-payment, and the fact that plaintiffs were the owners and holders of the note. These are the essential statutory requirements, and they are all substantially met by the complaint. The answer of the defendant was as follows: “ He admits the execution of the note and mortgage described in plaintiffs complaint, but he denies each and every other allegation contained therein, and each and every part thereof.” It is contended by the appellant that the answer was sufficient to putin issuethe question of payment, and that, therefore, the motion for judgment on the pleadings should have been denied. We are inclined to think, from an examination of the authorities, that under the pleadings no proof was required. However, the record shows that that question was not involved in this case; for while a motion for judgment on the pleadings was sustained by the court, it was evidently considered and treated by the court as a demurrer to the answer, for the record shows that on the 23d day of October, 1890, the case came on regularly to be heard, andthatafterthe motion forjudgmenton the pleadings had been sustained, evidence was introduced by the plaintiffs in support of their cause of action, and upon said evidence the court based its conclusions of fact. We are unable to see anything in the third contention of the appellant that the decree is void. So far as the attorney’s fee is concerned, the presumption applicable to courts ofgeneraljurisdictionisthatproof, withoutwhichjudgment could not be given, was duly made on the trial. But this position,like thefifth objection, that the decree is erroneous in giving judgment for a greater sum than was due, was never brought to the attention of the trial court so that it — 448 — could have an opportunity to correct such errors if they existed, and the appellant will not be permitted to assail for the first time in this court alleged errors which it was his right to have corrected in the court below. The judgment of the lower court is affirmed. Anders, O. J., and Stiles and Hoyt, JJ., concur. Scott, J., not sitting.