
    [No. 5063.
    Decided February 23, 1905.]
    Bart Healy et al., Appellants, v. King County, Respondent.
      
    
    Pleading — Demurrer—Waiver by Withdrawing — Objection to Any Evidence. The objection that the complaint does not state a cause of action, first raised by demurrer, is waived by the withdrawal of the demurrer and answering on the merits, and cannot be subsequently raised by an objection to any evidence.
    Appeal from a judgment of the superior court for King county, Morris, J., entered December 10, 1903, upon dismissing an action, after sustaining an objection to any evidence on the ground that the complaint did not state a cause of action.
    Reversed.
    
      Ballinger, Ronald & Battle and A. J. Tennant, for appellants.
    
      W. T. Scott, John C. Murphy, and D. C. Conover, for respondent.
    
      
       Reported in 79 Pac. 624.
    
   Per Curiam.

The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. Upon the coming up of said demurrer for argument, the defendant, in open court, waived its demurrer, and took time to answer. The case having been called for trial and a jury duly impaneled and sworn, a witness was called on behalf of the plaintiff; whereupon the defendant objected to the introduction of any testimony on behalf of the plaintiff, on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The court sustained the objection, and, plaintiffs electing to stand upon their complaint, judgment of dismissal was entered, from which this appeal was taken.

The demurrer to the complaint having been waived, the sufficiency of the complaint could not be again called in question, under the rule announced in Watson v. Town of Kent, 35 Wash. 21, 76 Pac. 297. The judgment is therefore reversed, with instructions to overrule the objection to the introduction óf testimony.  