Gilbert v. Thow ( 1928 )

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ. _

_ We have examined the assignment of error as to whether the court erred in overruling the motion to make definite and certain, and we have come to the conclusion that the statement of claim was sufficient, according to the rules •prescribed for a short form. cause of action. We feel that there was no prejudice at least for the reason that, as the trial proceeded, the information sought by the motion was furnished, and no effort was made to continue the cause on account of surprise and, therefore, it seems to us that there was no prejudicial error as to the demurrer.

It is our judgment that the petition stated a cause of action, and the thing sought by the demurrer was what the motion to 'make deflate and certain failed to accomplish and, therefore, its character was not a demurrer but in the nature of a -motion to make more definite and certain. We hold that the court m this respect committed no error.

Therefore, we are of the opinion that on this question there is no prejudicial error.

We have examined the complaint as to the charge of the court, and we think there is no prejudicial error in the charge in its entirety and the entire record in the case.

Holding these views, the judgment of the-lower court is'hereby affirmed.

(Vickery and Levine, JJ., concur.)