57 P. 314 | Idaho | 1899
— This is an action brought in the justice’s court, under the provisions of chapter 6, title 7, of the Revised Statutes. Section 1210 of the Revised Statutes provides as follows : It is not lawful for any person owning or having charge of sheep, to herd the same, or permit them to be herded, on the land or possessory claims of other persons, or to herd the same or permit them to graze within two miles of the dwelling-house of the owner or owners of such possessory claim.” Sections 1211 and 1212 provide for the recovery of damages by the party injured by a violation of said section 1210. The plaintiff is a Nez Perces Indian, holding lands by allotment under the treaties between said Nez Perces Indians and the United States government.
The plaintiff’s complaint alleges “that, during all the times hereinafter mentioned, he was and now is the owner and lawfully in possession of all that certain real estate situated in the county of Nez Perces, state of Idaho, and described as follows : Lots 14, 15, 16, 23, and 32, section 6, township 35 north, range 3 west, Boise meridian, containing one hundred acres, belonging to William Carter; lots 22, 33, 34, and 35, section 6, iownship 35 north, range 3 west, Boise meridian, containing eighty acres, allotted to Mary Carter, deceased; lots 8, 9, 24, and 25, section 5, lot 36, section 6, township 35 north, range 3 west, Boise meridian, containing one hundred and twenty-nine one-hundredths acres, allotted to Ip-nah-san-lah-kuskt; lots 6, 7, 12, 13, 24, 25, 30, and 31, (section 6, township 35 north, range 3 west, Boise meridian, containing one hundred and sixty acres, allotted to Elizabeth Carter.” Then follows the allegation of
Section 4174, chapter 3, title 6, of the Revised Statutes, gives the various grounds of demurrer to the complaint permissible under the Code of Civil Procedure, and section 4178 provides-that, “if no objection be taken, either by demurrer or answer,, the defendant must be deemed to have waived the same excepting only the objection to the jurisdiction of the court, and the-objection that the complaint does not state facts sufficient to constitute a cause of action.” To avail himself of objections 1,. 2, 3, and 5, as above enumerated, the appellants should have raised them by demurrer, either in the justice’s court or in the-district court, when the cause came on for trial de novo. Not having elected to do so, they are .deemed waived. As to the-fourth objection, it is the recognized rule that, if a single cause.
There are several exceptions taken to the admission of evidence, but we are unable to find any prejudicial error in the ruling of the court thereon. Exception is taken by appellants to certain instructions to the jury, given by the court. The instructions excepted to are a simple verbatim, recital of the statute. If objectionable, the objection should be urged against the legislature, which enacted the law, and not against the court which administered it.
The appellants’ objection that plaintiff cannot recover in this action, because he has neither the constructive nor actual possession of the lands is not maintainable. This question was considered and decided by this court in the case of Wa-La-Note-Tke-Tynin v. Carter, ante, p. 85, 53 Pac. 106. As to the questions of fact in the ease, while the evidence is somewhat conflicting, we think there is sufficient to support the verdict of the jury. The judgment and order of the district court are affirmed, with costs to the respondent.