Nichols v. Goldston

The defendant, appellant, challenges here the correctness of the judgment overruling his demurrer, solely upon the ground that on the facts alleged in the complaint, accepted as true for purpose of considering the demurrer, plaintiff’s remedy is by motion in the cause in the former action, and not by this independent action.

No direct authority is cited by the defendant to sustain his position. The authorities cited are distinguishable in factual situations. But in the light of the authority of the judge, and of the relative legal rights of the parties, at the time and under the circumstances…