(dissenting). — I am unable to agree with the reasoning of the majority, or with the conclusion reached by them. I think that the distinctions sought to be made are more fanciful than real. The code provides that the court shall, in every stage of an action, disregard any error or defect in pleadings or proceedings which shall not effect the substantial rights of the adverse party, and that before the prevailing party shall be put to the trouble and expense of a trial of his cause in the supreme court, the statement of facts shall be settled, and prescribes the manner in which it shall be settled.. This is a protection given by law to the respondent, and he is as much justified in insisting on this right as any other. If a complaint *232does not state facts sufficient to constitute a cause of action, the party defendant has a perfect right to demur to it, albeit it tends to prevent a hearing on the merits, and the demurrer will be subjected to the same test under the code that any other pleading will, for the law makes them equally proper pleadings. When a demurrer is waged, a liberal construction, it is true, will be given to the complaint, but it does not follow that an illiberal construction must be given to the demurrer; and so with regard to a motion. If the law has been substantially complied with, the motion must be denied; but there is no back action influence supposed to operate against the motion, and if it substantially complies with the requirements of the statute, and the opposite party has not been misled, it must be held sufficient; for it is a proceeding in a certain stage of an action, and falls, consequently, within the provisions of the code. In this instance it cannot be said that the appellant was misled. It was evident by the motion that the respondent objected to a hearing on the merits, for the reason that an ex-judge had signed the certificate to the statement of facts, instead of the de facto judge. It is true that the respondents ask to have the appeal dismissed, but the thing objected to was a consideration by this court of an alleged statement of facts. This was the subject discussed; this was the point on which authorities were cited. The reasons given in the motion itself notify the appellant as plainly and certainly as though the motion had been denominated a motion to strike the statement of facts; and to hold that such a motion shall not avail a party who has a valid defense to this appeal, is too much like chasing the shadow at the expense of allowing the substance to escape.
Anders, O. J,, concurs.