American Fruit Growers, Inc. v. King
American Fruit Growers, Inc. v. King
Opinion of the Court
The opinion of the Court was delivered by
This is an appeal from an order that a demurrer to the complaint herein be overruled; also “that the plaintiff have leave to amend his complaint, if so minded, so as to more fully set forth what was intended to be said and expressed by the words ‘delivered,’ in paragraph seventh of his complaint, without prejudice to the defendant, to demur again to said amended complaint, if so minded.”
The first exception that will be considered, is as follows:
“The presiding Judge erred, it is • respectfully submitted, in incorporating in his order herein a provision allowing the plaintiff to amend his complaint, in the absence of a motion from plaintiff SO' to amend, and by so permitting said amendment to allow plaintiff completely to change the statement of his cause of action, and insert in lieu of that alleged in the complaint a new and different one.”
The authorities cited in the argument of the respondent’s attorney show that this exception must be overruled. *228 Having reached this conclusion, the exceptions assigning error in overruling the demurrer to the complaint will not be considered, as the questions presented by them are now speculative.
■Appeal dismissed.
Reference
- Full Case Name
- American Fruit Growers, Inc., v. King Et Al.
- Status
- Published
- Syllabus
- Pleading-Court, isr Overruling Demurrer to Complaint, Did not Err in Allowing Plaintiff to Amend, in Absence of Plaintiff’s Motion Therefor.- — -The1 Court, in overruling demurrer to complaint, did not err in incorporating in his order, in the absence of a motion by plaintiff therefor, a provision allowing plaintiff to amend complaint, so as to more fully set forth what was intended to be expressed by the use of a certain word, without prejudice to the defendant to demur again to amended complaint.