Taylor State Bank v. Baumgartner
North Dakota Supreme Court
Appeal from an order of the District Court of Stark County, Crawford, J. The complaint stated no cause of action against appellant, and the district court erred in vacating the judgment for the purpose of permitting plaintiffs to amend their complaint.
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Appeal from an order of the District Court of Stark County, Crawford, J. The complaint stated no cause of action against appellant, and the district court erred in vacating the judgment for the purpose of permitting plaintiffs to amend their complaint. Willard v. Mohn, 24 N. D. 386, 390, 139 N. W. 979, 981; Boas v. Maloney, 138 Cal. 105, 70 Pac. 1004; Lord v. Hopkins, 30 Cal. 76; Phillips, Code PI. § 311. , On the motion to vacate, plaintiffs should have submitted to the court an affidavit of merits and the complaint as they desired it to be amended; at least a complaint showing a cause of…
1Opinion of the CourtGoss, J.
This is an action to recover of the principal and surety on a bond given contemporaneously with, and intended to insure the faithful performance of the terms of, a building contract, and which contract the complaint shows has been breached by nonperformance of certain conditions thereof. Both the building contract and the contractor’s bond are a part of the complaint. The demurrer of the surety to the complaint was sustained, and judgment was entered dismissing the suit as to the surety, evidently on the assumption that the complaint could not be so amended as to state a cause of action…
2Cases cited9 opinions
- George A. Hormel & Co. v. American Bonding Co.Supreme Court of Minnesota · 1910
- German Fire Insurance v. GueckIllinois Supreme Court · 1889
- Brown v. Title Guaranty & Surety Co.Supreme Court of Pennsylvania · 1911
- Butler v. BarnesSupreme Court of Connecticut · 1891
- Forester v. AukenNorth Dakota Supreme Court · 1903
4 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Emick v. SwaffordSupreme Court of Kansas · 1920
- Whittaker v. United States Fidelity & Guaranty Co.District Court, D. Montana · 1924