Piggott v. Kirkpatrick

31 Ind. 261

Opinion

Ray, J.

A motion was made by amicus carice to dismiss the suit on account of alleged defects in the complaint. The motion was sustained by the court,over the objection of the plaintiff. There was no appearance by the defendant.

If the facts stated are not regarded as sufficient, a demurrer by the. defendant will present that question to the court; but a motion to dismiss for that cause, filed by the defendant, should be overruled, as the plaintiff has a right to amend his complaint, and is deprived of this right by a nonsuit. Ko such motion can properly be made by any one-not a party to the suit. We therefore decide nothing in regard, to the merits, but reverse the case, and direct the motion to dismiss to be stricken from the files.

Costs against appellee.