Smith v. Ward

It is urged, as the first claim of error, that the trial court erred in sustaining the demurrer and in ordering said amendment. This contention, as we see it, is not now open to inquiry. The plaintiff did not elect not to further plead and did not permit final judgment to be entered on the demurrer and prosecute error therefrom, but to the contrary, he elected to amend his petition as ordered by the trial court. By doing so, plaintiff waived the claimed error. Bingham v. Nypano Railroad Company et al., 112 OS. 115.

At the close of plaintiff’s evidence in chief, the trial court, over an…