Justice

The action was brought to recover back taxes paid to the defendant, a tax-collector of Orange County, and ex officio tax-collector of Bolsa Drainage District, under protest. The defendant’s demurrer to the complaint was overruled, and thereupon an answer was served and filed. Upon motion by plaintiff certain defenses set up in the answer were stricken out by the court. Thereafter the ease was set for trial, and the parties appearing in court, and a jury being waived, the plaintiff was called as a witness, whereupon defendant objected to the introduction of any evidence, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the objection of the defendant, and thereupon dismissed the action. The appeal is taken from the judgment entered upon the dismissal.

Appellant claims that it was error upon the part of the court to dismiss the action as stated, without a formal motion being made for that purpose, contending that the plaintiff could have met such motion by asking leave to amend its complaint. But the plaintiff was present in court by counsel, and had an opportunity then and there to ask such leave, and failed to do…