Spake v. . Pearlman

Relative to the statement in the judgment that the evidence would not warrant an amendment to the complaint, we must keep in mind that the question posed for solution here does not arise out of a demurrer to the evidence or motion for judgment as of nonsuit for its insufficiency to go to the jury. The record does not disclose that any motion of that sort was made. If it was made, nevertheless the evidence was submitted to the jury and the defendants did not except or appeal. They got their deliverance from a different source. Demurrer to the complaint as not stating a cause of action may be…