In Re: Rehearing

• Decision Date: 16 February 1934
• Citation: 54 Idaho 95
• Parties: On Petition For Rehearing.
• Court: Idaho Supreme Court

54 Idaho 95

On Petition For Rehearing.

Supreme Court of Idaho

February 16, 1934

MORGAN J.

-Respondents petition for a rehearing and therein state "The court erred in its general holding that the objection that the complaint herein does not state facts sufficient to constitute a cause of action could not be made during the introduction of testimony by the plaintiffs, and before the plaintiffs had rested, but after it developed affirmatively in the trial that the plaintiffs had no cause of action against the defendants based upon the written agreement which was a part of the plaintiffs' complaint and which was introduced in evidence at the trial."

The court did not so hold.

Respondents further assert "the court erred in holding inferentially at least, that the objections of the respondents upon which the lower court ordered a dismissal of this cause were in fact a demurrer to the evidence or a motion for a non-suit or directed verdict. That said objections were made under I. C. A. 5-611 to the complaint and to the evidence introduced in proof of said complaint which objections had not been waived, and were available to the respondents at any stage in the proceedings, even in this court for the first time."

As pointed out in the original opinion, counsel for respondents stated to the trial court, after objecting to an offer of proof, that "the defendants renew their demurrer to the complaint and to the evidence now in," and thereupon stated the ground upon which the demurrer was based. After the court sustained the objection to appellants' offer of proof, counsel for respondents stated: "For the purpose of the record we should have a decision on the demurrer." To which the court responded: "The demurrer will be sustained." Whereupon counsel for respondent stated: "I am referring to the complaint and the evidence and the demurrer is the last paragraph in the answer." In the judgment dismissing the action it is recited: "It is therefore ordered, adjudged and decreed that the demurrer of the defendants to the plaintiffs complaint herein and to the evidence offered in support thereof by the plaintiffs be, and the same hereby is sustained, and that plaintiffs take nothing by their said action, and that the same be dismissed, and that defendants recover their costs and disbursements herein, taxed at the sum of $3.00."

We are still of the opinion the trial court sustained respondents' demurrer to the complaint, incorporated in the answer, and, upon respondents' request, sustained a demurrer to the evidence before plaintiffs rested. We understand in states where the law provides for, or permits, a demurrer to the evidence its function is similar to that of a motion for a nonsuit, or directed verdict, as those motions are employed here. (64 C. J., beginning on page 371.)

We have not held, and do not desire to be understood as holding, that a trial court has no power to terminate a trial before plaintiff has rested if it should conclusively appear he cannot prevail. (64 C. J. 500.) We do hold the action of the trial court in terminating this case, when, and for the reason it was terminated, was erroneous. (64 C. J. 394, 397, 400, 431.)

I. C. A., sec. 5-611, relied on in the petition for rehearing is as follows:

"If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action."

There is nothing in this section to support the petition for rehearing.

The second assignment of error contained in the petition is as follows:

"If this court adheres to that part of its decision herein which holds that it was improper for the trial court to either sustain the respondents' demurrer to the evidence, or to the appellants' complaint, or to entertain the objection made by ...