Jamison v. McMillen

Citations

• 26 N.M. 231
• 190 P. 726

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Under section 4114, Code 1916, an objection that the complaint tails to state facts' sufficient to constitute a cause of action can be raised at any tiime, and is not waived by failure to demur. If the defendant fails to object to the complaint and litigates the material fact or facts omitted therefrom, he cannot after judgment raise the question as to the insufficiency of the complaint, and on appeal the complaint would be amended to conform to the facts proven on the trial. P. 233</p> <p>2. It is appellant’s duty to see that the record is kept and certified so as to present the point which he desires to have the appellate court review, and, where he contends that the trial court erroneously held that his second amended complaint failed to state a cause of action, it is incumbent upon him to have such amended complaint incorporated into the record. P. 233</p> <p>3. In an action in ejectment the plaintiff is not required to anticipate the defendant’s defense, but, if he does so, facts such as would show a title sufficiently strong to destroy such defense must be stated. P. .236</p>