Darst v. Rush

Cope, J. delivered the opinion of the Court—Baldwin, J. concurring.

In this case the Court below nonsuited the plaintiff, on the ground that the allegations of the complaint were not sustained by the evidence. A judgment for costs was rendered against the plaintiff, and he thereupon appealed to this Court. It is urged here that this judgment cannot be reviewed, because: 1. Eio motion was made for a new trial; and, 2. There is no statement on appeal containing the evidence upon which the nonsuit was granted. ETeitlier of these objections are tenable. This Court has never decided that amotion for a new trial was necessary in a case like this, and the obvious inconvenience of the practice is a sufficient reason why it should not be adopted. [84]The reference in the statement to the evidence, as taken down by the Clerk, is sufficient. It was taken down with the consent of parties, and as it was placed on file and retained among the papers in the case, there was no necessity for transcribing it into the statement. The evidence referred to is clearly identified, and the names of the witnesses given. Mo mistake as to what was intended could possibly occur, and the objection is too technical to be allowed.

The only error assigned by the Appellant is the order of the Court in granting the nonsuit. The complaint states in substance, that certain premises of the plaintiff were forcibly entered by the defendant, who did great damage thereto, by causing the same to be overflowed and covered with earth, gravel, and other worthless matter, moved and deposited thereon by the force, and through the agency, of running water.

The language of the complaint is, that the defendants, “ with force and arms, broke and entered,” etc. The evidence shows that the defendants were engaged in mining on the side of a hill a short distance above the premises of the plaintiff; that they used in their operations a large quantity of water, and that this water, after being thus used, escaped and flowed down the hill, carrying with it and depositing on these premises the earth, gravel, and worthless matter, mentioned in the complaint. The defendants caused the water to flow as it did, and the damage done was the result of their acts. The Court below assumed as the result of the evidence, that the damage done to the premises of the plaintiff was the remote and consequential, and not the direct and immediate, effect of the acts of the defendants.

In the view we take of the case, the correctness or incorrectness of that position is wholly immaterial. Under our system, the pleader is required to state, in ordinary and concise language, the facts constituting the cause of action, and the addition of unimportant words and phrases, which do not alter the meaning and lead to doubt and misapprehension, cannot change or impair the effect of the pleading. In this case, the defendants could not have been misled by any words used in the complaint. The facts are stated in clear and accurate terms, free from all ambiguity in sense or expression. The proof conformed to these facts, and the words “ with force and arms,” and all