Barber v. Moore ( 1871 )

Opinion by

Judge Peters :

If a plaintiff fails to state a cause of action, it is not too late in the progress of the trial at any time to demur, or .to move for non-suit, or in arrest of judgment, and where a plaintiff has recovered judgment -below and has failed to state facts sufficient to -constitute a cause of action, this court will reverse the judgment unless the defect is cured by the answer.

In this case appellant seeks to recover damages for deceit on the part of appellee in a horse trade. The latter in his answer says appellant is not damaged because the horse he swapped did not belong to him, but was the property of A. A. Barber. In his amended petition-, appellant- admits the horse he traded belongs to his brother, A. A. Barber, and says when he traded him he simply became indebted to his brother for the price of the horse — having general permission to trade the horse — these are only conclusions of the pleader, and not a statement of such facts as would divest A. A. Barber of the title to the horse— and for all that appears he might bring his action and recover the horse from appellee — facts should have been stated to show that A. A. Barber was divested of his title to the horse.

W. J. Stubblefield, for appellant. Anderson, for appellee.

Wherefore the judgment is affirmed.