Dorr v. McDonald

Mitchell, J. In an action for unlawful detainer, plaintiff’s counsel drew a very poor complaint. But the defendant, without objection to it, joined issue and went to trial on the merits, and, being defeated, on appeal from the judgment, now, for the first time, raises an objection to the sufficiency of the complaint. In the absence of a case or bill of exceptions, we will presume that defendant voluntarily consented to the trial of all the issues involved in the verdict that plaintiff was entitled to the possession of the premises. As against an objection interposed at this stage of the proceedings, the [459] complaint should be held sufficient. Within the rule of Smith v. Dennett, 15 Minn. 59, (81,) we think that it is fairly inferable by reasonable intendment from what is alleged that, while the original letting was for only a month, the defendant continued in the occupancy of the premises as tenant from month to month. Indeed, if it was necessary, in order to sustain the judgment, we would be justified, under the circumstances, in directing the court below to permit the complaint to be amended so as to conform to the facts proved. Judgment affirmed.