
    (No. 5612.
    Decided July 18, 1905.)
    Minnie Wappenstein et al., Respondents, v. The City of Aberdeen, Appellant.
      
    
    Appeal—Objections to Pleadings—Waiver of Error. An objection that a complaint does not state facts sufficient to constitute a cause of action, cannot be first raised in the supreme court, where the defect is one that is capable of amendment, but is waived by answer and trial on the merits.
    Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered September 6, 1904, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages to property by the change of a street grade.
    Affirmed.
    
      R. E. Taggart and E.. E. Boner, for appellant.
    
      John 0. Hogan, for respondents.
    
      
      Reported in 81 Pac. 686.
    
   Per Curiam.

This is an appeal from a judgment awarding the respondents damages caused their property by reason of a change in the grade of the street fronting thereon, made under the authority of the appellant city. The assignments of error raise but one question, namely, does the complaint state facts sufficient to constitute a cause, of action. It is said that the complaint fails to state a cause of action because it fails to allege that the property had been improved with reference to the established'grade. But if it be the rule that a municipality may make as many changes in the grade of a street as it pleases without subjecting itself to damages at the suit of property owners owning property fronting thereon, so long as the property has not been improved with reference to an established grade, and that a complaint asking for damages which fails to allege improvement of the property with reference to the established grade is defective, we think the appellant is estopped from urging the question on this appeal. The objection is raised for the first time in this court, and, as the defect is one that could have been cured by amendment, it was waived by answering over’ and going to trial on the merits.

The judgment is affirmed.  