¶1The defendants, appearing only for the purpose of moving to vacate an order for the service of the defendants by publication, attack the order upon the ground that the complaint does not state a cause of action against them. On an appeal in this action from an order granting leave to amend the complaint this court held that, in view of the fact that the questions involved in this action had not been definitely passed on by the Court of Appeals, they should not be determined upon a motion; but it was left to the defendants to raise the questions by demurrer or answer so that eventually the question could be brought before the appellate court in a regular way.
¶2I think that the same disposition should be made of the appeal. The question as to the right of the plaintiff to recover in the action should not be determined upon a motion of this kind except in a case where, from a bare inspection of the complaint, it can be seen that there is no cause of action alleged, and, consequently, that the complaint is frivolous. Whether or not the action in its present form can be maintained is not so clear as to justify us in saying that the action is frivolous. These defendants by demurring to the complaint or by answer can have the question properly determined, and we should not, on a motion to set aside the service of the summons, preclude the plaintiff from such a course as would enable him to present the question involved to the Court of Appeals. The court, therefore, expressing no opinion upon the questions argued, refuses to determine the questions upon the decision of this motion.
¶3The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements.
¶4Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
¶5Order affirmed, with ten dollars costs and disbursements.