This is another case growing out of the assessment for a local improvement considered in McConville v. City of St. Paul, 75 Minn. 383, 77 N. W. 993; Rogers v. City of St. Paul, 79 Minn. 5, 81 N. W. 539; and Germania Bank v. City of St. Paul, 79 Minn. 29, 81 N. W. 542. The complaint does not differ in any matter of substance from that held in the Rogers case as failing to state facts sufficient to constitute a cause of action. The main allegations thereof are stated in the opinion in that case, and need not be repeated here. Of course, the property is not the same. Plaintiff’s lots are situated to the east of the tract of land involved and described in that case. The defendant city made answer to the complaint herein; thereupon the plaintiff replied; and, on the issues thus made, the parties proceeded to a trial by the court without a jury.
At the opening of the trial, counsel for defendant city objected to the admission of any testimony on the ground that the complaint did not state a cause of action. This objection was overruled, and defendant’s counsel duly excepted. A written stipulation was then offered by plaintiff’s counsel, in which certain facts were agreed upon; but this stipulation as to fact§, was, by its express terms, made subject to any objection which might be raised as to the competency, relevancy, or materiality of any of the stipulated facts as testimony. Counsel again and again insisted upon his objections to the admission of these facts as evidence, and took proper exceptions to adverse rulings; evidently relying upon his preliminary objection to the sufficiency of the complaint. The facts were not litigated by consent, according to the record. This seems to have been understood by the court below, and, when both parties rested, no testimony having been introduced by defendant city, its counsel moved to dismiss upon the ground that no right to recover had been established. This motion was granted by the court, and plaintiff appealed from an order denying a new trial.
With this condition of the record, the action of the court in disposing of the appeal is controlled entirely by the two cases in *10179 Minn. and 81 N. W., before cited, as involving the same assessment, in each of which it was held that a complaint the same as this, in substance, failed to state a cause of action. As defendant’s counsel raised the point at the outset, and reserved it in the stipulation, the defective complaint was not aided by the testimony objected to. The facts contained in the stipulation were specially-objected to, and were admitted over the objections, all thereof being based upon -counsel’s general objection that the complaint did not state facts sufficient to constitute a cause of action. Notwithstanding this trial, and the admission of the testimony, the case stands precisely as if the preliminary objection to the complaint had been sustained, judgment had been entered, and an appeal therefrom had been taken by plaintiff’s counsel. It is obvious that the judgment would have to be affirmed on the authority of the previous decisions.
Order affirmed.