30 Mont. 13 | Mont. | 1904
prepared the statement of the case and the following opinion for the court:
If there is an issue framed by the pleadings, the court was right in refusing to grant plaintiff’s motion for judgment thereon. (Horsky v. Moran, 13 Mont. 250, 34 Pac. 360; Bach, Cory & Co. v. Montana L. & P. Co., 15 Mont. 345, 39 Pac. 291; Floyd v. Johnson, 17 Mont. 469, 43 Pac. 631; Sklower v. Abbott, 19 Mont. 228; 41 Pac. 901; Bryant v. Davis, 22 Mont. 534, 57 Pac. 143.)
No question has been raised by counsel as. to- the sufficiency of the complaint. We think material portions of it axe, in effect, denied by the answer, though the latter pleading is subject to criticism.
The first paragraph of the answer is merely a literal denial of a portion of the first paragraph of the complaint, and is insufficient
In the second paragraph of the complaint it is alleged that the plaintiff performed the work at the instance and request of Cummings* “and for the use and benefit and improvement and development of the said property, and for the use and benefit of the said defendants.” The answer “denies that plaintiff rendered or performed services as a miner or otherwise upon said premises for the use or benefit of this defendant, ox at the request of this defendant.”
The third paragraph of the complaint contains this language: “That said Cummings agreed to' pay the plaintiff the sum of $686, and said agreement was made upon the part of said de
Denials which are as specific as the allegations they are intended to meet, and which controvert the spirit and substance of the adverse pleading, are sufficient. (Miles v. Edsall, 7 Mont. 185, 14 Pac. 701.) We think the court was justified in overruling the motion.
Section 741 of the Code of Civil Procedure declares: “If a demurrer, answer, or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, m,a,y apply to the court or to1 a judge of the court for judgment thereupon, and judgment may be given accordingly. If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs may be awarded in the discretion of the court.”
After the court overruled the motion, the plaintiff was a,t liberty to proceed with his proof. He was in no> manner injured hy the action of the court. Instead of proceeding to trial upon the, merits,, he saw fit to say to the court that the defendant Murray might have judgment, and it was entered accordingly. This the court could not have done rightfully in the absence of plaintiff’s action in the premises, because, some of the material allegations of the complaint being denied by the answer, an issue remained to be tried. Under the circumstances the court’s action was proper.
We are of the opinion that the judgment should be affirmed.
For the reasons given in the foregoing opinion, the judgment is affirmed.