57 P. 315 | Idaho | 1899
(After Stating the Facts.) — There is nothing in the motion to dismiss the appeal requiring extended, consideration. The principal ground of the motion is that the order sustaining plaintiffs demurrer to the counterclaim set forth in the answer of the defendant cannot be reviewed- on appeal from the final judgment by the defendant. This ground is not tenable. Such order may be reviewed on appeal, and, if the order sustaining such demurrer is erroneous, the judgment must be reversed, where the defendant stands on his pleading, and appeals from the final judgment.
Only two questions arise on the appeal upon its merits. The mortgagee, without any stipulation in the mortgage authorizing him so to do, insured the mortgaged premises; and the court awarded him, in its decree, the amount of premium (twenty dollars) paid by him for the policy of insurance. This was error. The payment of the premium by the mortgagee was voluntary, and he was not entitled to recover it back from the defendants.
The second and remaining question arises from the action of the trial court in sustaining the demurrer of the plaintiff to that part of the defendants’ answer setting forth a counterclaim. The defendant, by way of counterclaim, averred that on August 31, 1896, he (the defendant, William Hunt,) and his wife, the defendant, Martha E. Hunt, bargained, sold, and