Middelstadt v. McIntyre

Vanderburgh, J.

This action was brought in Justice’s Court. A complaint in writing was filed with the Justice, and, before answering, the defendant appeared, and moved to dismiss the action, on the ground that the complaint did not state facts sufficient to constitute a cause of action, which motion was summarily granted, and judgment was thereupon rendered for the defendant.

The gi’anting of this motion is assigned as error, on the ground that the procedure was unauthorized by the statute regulating the practice in Justice’s Court.

We think the point is well taken. The statute (1878 G. S. ch. 65, § 33) provides that “either party may object to the pleading of his adversary * * * that it contains no cause of action or defense. If the court deems the objection well founded, it shall order the pleading to be amended.” The court had no authority to order or render judgment without directing an amendment as the statute requires. The pleading was clearly bad, but it was the duty of the Justice, in his order disposing of defendant’s objection to it, to order it to be amended. This was the only course open to him under the statute, the object of which is undoubtedly to prevent the summary disposition of cases in justice’s court for defects in pleading without opportunity for amendment and a trial upon the merits. Hilliard v. Austin, 17 Barb. 141. Here the ease was within the jurisdiction of the Justice, and we should hardly be warranted in holding that the complaint could not be amended, by the addition or substitution of allegations, so as to state a cause of action. Glasse v. Keulsen, 3 Abb. Pr. 101.

(Opinion published 56 N. W. Rep. 464.)

For the error referred to, the judgment must be reversed, but no costs should be allowed in this court.

Judgment reversed, and case remanded.