Johnson v. Burnside

Citations

• 3 S.D. 230
• 52 N.W. 1057
• 1892 S.D. LEXIS 64

Syllabus

<p>1. When the complaint omits facts essential to a cause of action, but which might be supplied by amendment, under section 4938, Comp. Laws, before or after judgment, and these facts are proved at the trial after the judge has refused to exclude the evidence of plaintiff on the ground that the complaint does not state facts sufficient to constitute a cause of action, the defect in the complaint is no ground for a reversal of the judgment.</p> <p>2. A demurrer is the proper proceeding to test the sufficiency of a pleading, and a party, by omitting to demur and pleading to the merits, is not in a position to claim the indulgence of the court. And if objection is taken to the complaint at the trial, after answer, and the complaint is amendable under section 4938, Comp. Laws, permission to amend should be given, or the evidence received, and the complaint subsequently amended to conform to the facts proved.</p> <p>3. When, however, the comifiaint fails altogether to set out a substantial cause of action, and is incapable of being made good by amendment, the objection to it may be taken in any stage of the proceedings.</p> <p>4. Greater latitude of presumption may be indulged to sustain a complaint when the objection that it does not state a cause of action is taken for the first time at the trial, after an issue of fact has been taken upon it by answer, than when the same objection is taken by demurrer.</p> <p>5. When a party seeks to rescind a contract on the ground that his consent to the same was obtained through fraud, he must restore or offer to restore all the consideration received by him under the contract; but a formal tender is not necessary when the party guilty of the fraud refuses to receive the property back, and return the considera- ; tion.</p> <p>(Syllabus by the Court.</p>