Bue v. Ketchum

Cassoday, J. There is no bill of exceptions, and the only question therefore is, whether the judgment is sustained by the record. The first error assigned is, that the second count does not state facts sufficient to constitute a cause of action, and that therefore no evidence should have been admitted to establish the same. But we are of the opinion that it does; and, if it were otherwise, yet we are clearly of the opinion that such an [326] objection, taken for the first time at the trial, was properly-overruled. If the defendant desired to have the complaint made inore definite and certain in that respect, he should have made his motion therefor. Our reasons for such opinion are fully expressed in the opinion filed herewith in Redmon v. The Phœnix Fire Ins. Co., ante, p. 292. But since it was on an account for work and labor, the defendant could, if he desired, have demanded a bill of particulars, under section 2672, R. S.; and possibly this was his only remedy. The second error assigned is based upon the evidence; andas there is no bill of exceptions, it is not here for consideration. By the OovH.— The judgment of the circuit court is affirmed.