Tibbets v. Blade

The Court: After verdict in favor of defendant, and judgment thereon, plaintiff moved to set aside the judgment and for judgment in his favor on the pleadings for five hundred dollars—expressly waiving a motion for new trial. The motion was irregular and was properly denied. But even if the like motion had been made at the commencement of the trial, it should have been denied, because, all the material averments of the complaint are denied by the answer. If disconnected statements of facts can be culled from the complaint such as might constitute the statement of a cause of action in ejectment, the objections made by defendant to evidence offered by plaintiff (as the same are set forth in the bill of exceptions), were properly sustained, in the absence of [431] evidence of seisin or possession by plaintiff of the premises alleged to have been intruded upon by defendant. But the complaint clearly shows that the action is brought to recover damages for a public nuisance committed by obstructing a highway. The complaint contains no averment of facts showing special damage such as would authorize a private person to maintain the action. Judgment and order affirmed, with twenty-five per centum damages.