
    D. M. Osborne & Co. vs. John G. Johnson.
    June 14, 1886.
    Appeal — Error without Prejudice. — The complaint stated no cause of action, and the answer no valid counterclaim. The court, instead of dismissing the action, ordered judgment on the pleadings for defendant for six cents nominal damages. Held error without material prejudice, and hence no ground for a new trial.
    Appeal by plaintiff (a corporation) from an order of the district court for Polk county, Stearns, J., presiding, refusing a new trial. When the case was called for trial, plaintiff asked leave to dismiss, which was denied. Plaintiff then moved to strike out the counterclaim in the answer, which motion was denied. Defendant demanded a jury trial. A jury was called, and plaintiff, on demand, refused to pay the jury fee. The court, thereupon, on defendant’s motion, directed judgment for defendant for six cents, without receiving any evidence.
    
      G. D. Emery, for appellant.
    
      John N. Ives, for respondent.
   Mitchell, J.

The complaint refers to the contract upon which this action is brought as “Exhibit A, made part of this complaint.” But, according to the record before us, no such exhibit is in fact attached to the complaint, and the terms of the alleged contract are nowhere stated. The defendant’s answer refers to the contract, the breach of which constitutes the basis of his counterclaim, as “similar to the one set out in the complaint,” but nowhere states its terms -or character, except that it was “an order for one No. 12 seven-foot-cut harvester and binder. ” The result is that, according to the record, the complaint states no cause of action, and the answer no counterclaim. Neither party introduced any evidence. On such a state of facts neither party was entitled to judgment on the pleadings for even nominal damages. What defendant was entitled to was judgment dismissing the action, and for costs. But it is no ground for •a new trial that the court, instead of this, ordered judgment for defendant, on his so-called counterclaim, for six cents nominal damages. This is error without material prejudice.

Order affirmed.  