McCauley v. Gilmer, 2 Mont. 202

McCauley v. Gilmer

2 Mont. 202 | Mont. | 1874

Seevis, J.

The complaint in this action avers : That the respondent is seized in fee and entitled to the immediate possession of certain land therein described; that appellants are in possession and withhold the same to his damage in the sum of $300.

The appellants demurred to the complaint for want of sufficient facts therein stated. The demurrer was overruled hy the comt, and the appellants excepted and thereafter answered, admitting that the title was in the respondent, but denying the respondent’s right of possession, the wrongful withholding of the same, and the damages.

The respondent thereupon moved for judgment upon the plead- „ ings, because the answer was sham and irrelevant. The court sustained the motion, and without a trial rendered judgment for the possession to the respondent and damages in the sum of $1.

I have heretofore maintained, in a dissenting opinion in the case of Sands v. Maclay, ante, 42, that this mode of practice is improper ; but the majority of this court thought otherwise, and the same must be observed as the law until it is reversed. It only remains for us to determine the sufficiency of the pleadings in the case, which consist of the complaint and answer.

IJpon an examination of all the authorities which have been *205cited by counsel, we are inclined to follow tbe ruling of tbe supreme court of California in Payne v. Treadwell, 16 Cal. 220. Tbe only facts wbieb are necessary to be alleged in a complaint of tbis character are, that tbe plaintiff is seized in fee, or for life, or for years, as tbe case may be; that tbe defendant was in tbe possession at tbe time of tbe commencement of tbe action; and that be withholds tbe possession of tbe same. The complaint in tbe case at bar contains these necessary allegations, and is therefore sufficient for tbe maintenance of this action.

Tbe answer denies tbe right of tbe respondent to tbe possession, tbe wrongful withholding thereof, and the damages. These are conclusions of law, which must be derived from tbe facts that are to be proved, and do not constitute issues joined by pleading. They are, therefore, what tbe legislative assembly has denominated. sham and irrelevant. Tbe judgment' of tbe court below is affirmed.

Judgment affirmed.