Syme v. Steamboat Indiana
Decision Date | 31 March 1859 |
Citation | 28 Mo. 335 |
Parties | SYME et al., Respondents, v. STEAMBOAT INDIANA, Appellant. |
Court | Missouri Supreme Court |
1. The objection that a petition does not state facts constituting a cause of action is not waived by a failure to take the same by demurrer; the defendant may make the same by motion for new trial, or may at the trial oppose on this ground the introduction of evidence on the part of the plaintiff.
Appeal from St. Louis Circuit Court.
The petition in this case is as follows:
Neither the writing described in the petition nor the bill of lading referred to was annexed thereto. At the trial, the defendant objected to the introduction of any evidence in the cause on the part of the plaintiffs on the ground that the petition did not state facts sufficient to constitute a cause of action. The court overruled the objection. The jury found for the plaintiffs. The defendant moved the court to grant a new trial upon the ground, among others, that the petition did not state facts sufficient to constitute a cause of action.
Bland & Coleman, for appellant.
I. The defendant may, upon the trial of an action, take the objection that the petition does not state facts sufficient to constitute a cause of action. It is the duty of the court to hear and determine such an objection. (R. C. 1855, p. 1231; 7 Barb. 581; 9 Barb. 158; 19 Barb. 186; 3 Seld. 459; 3 Seld. 576.) The petition does not allege that the defendant is a vessel used in navigating the waters of this state, or in any manner aver any facts giving the court jurisdiction in the premises. It does not state that the defendant was a common carrier. It does not state that defendant did receive or was to receive any compensation for the transportation of the goods. (23 Mo. 432; 24 Mo. 80; 9 Barb. 158.) The court erred in refusing the instruction asked by the defendant, and in instructing the jury, and in overruling the motion for a new trial.
Carroll, for respondents.
I. It is too late to object to the form of the petition at the trial. If defendant wished to assail the petition, a demurrer should have...
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