Oregon-Washington Water Service Co. v. City of Hoquiam

The main-contention urged in the petition for a rehearing is that we failed to give consideration to the rule that a defendant may waive-the objection that the action is premature by failing seasonably to interpose it in the-trial court. While we think the grounds upon which the decision is made to rest reach-deeper than mere prematurity, for the purpose of disposing of the contention we accept appellant’s assumption in that respect.. By General Equity Rule 29, demurrers and', pleas are abolished, and any defense in point, of law arising on the face of the bill which, formerly could have been made by demurrer or plea must now be made by a motion-to dismiss, or in the answer. Prematurity here appears on the face of the bill. The defendant interposed, and the court sustained, a motion to dismiss. The record, nowhere expressly shows what specific grounds for the motion were urged or on what ground the court sustained it. Appellant now states that the position of the city is perfectly clear, namely, that it has not agreed to purchase the plant and cannot ber compelled to do so. True, that is one of the-positions now taken but not the only one. And below defendant may have urged all…