4 Indian Terr. 660 | Ct. App. Ind. Terr. | 1903
The defendant files with his brief the following assignment of errors: (1) The court committed error in not carrying the demurrer back and sustaining it as to the complaint. (2) The court committed error in sustaining the demurrer to the answer. (3) The judgment is not warranted by the pleadings.
The first ground of the demurrer to the complaint is general, and goes to the sufficiency of the complaint, that it does not set up a cause of action as a whole; the second ground is special, that the facts set forth in the complaint are not sufficient to how ownership or the right of possession .in the plaintiff. But, this demurrer was heard, overruled, and no error assigned as to the action of the court in overruling it. The appellant's counsel now claim, however, that when the court came to consider the demurrer to the answer, on the theory that a bad answer is good for a bad complaint, “the court should have carried the demurrer to the answer back, and sustained it as to the complaint,” although the complaint had already been adjudged good as against a demurrer which attacked it at eveiy point at issue in this case; and the ruling of the court seems to have been satisfactory to the defendant for he saved no exception. Had he done so, the sufficiency of the complaint would have been properly before us. When the court overruled the demurrer the question of the sufficiency of the complaint became res adjudicata in the case, and the court, we think, was not required, on a demurrer to the answer, to go back and again pass on the sufficiency of the complaint on the points raised, by the demurrer to it; and an exception to the ruling on the demurrer to the answer is not an exception, under these circumstances, to the ruling of the court as to the sufficiency of the complaint upon
The defendant's counsel contend that, as the parties to the suit are shown by the conplaint to be Quapaw Indians, the law' of descents of that nation should have been pleaded. The record show's no objection made to the complaint on that account. The demurrer does not do so, nor does the answer plead it. If it w'ere true that at the time the rights of the parties accrued the Quapaw1- Tribe of Indians wras a sovereign nation, with law’s of descent and distribution different from those in force within the jurisdiction of the court in which the case was tried, and under those laws the plaintiff was not an heir of the estate of the intestate, and without title by inheritance, it was his duty to have set it up in his answer. It would have been a perfect defense to the action. When the law of a foreign nation is not pleaded, it will be presumed to be that of the forum in which the trial is had. The complaint avers that the parties are Quapaw Indians; the defendant, therefore, had notice' of that fact, and was not taken unawrares.
It is also contended that the complaint ‘is deficient in this: that the plaintiff does not show that she is the only heir; that is, that the averment'that she is the only heir is simply a conclusion of law, and not a statement of a fact. But the complaint states more. It states that John Thompson, her son, acquired by patent the premises sued for; that he is dead; that he had married one Lizzie Davis Thompson, by whom he had one child, Joseph Thompson, his only heir, w'ho died after his father; that Joseph died in infancy, without issue, leaving the plaintiff, his grandmother, on the paternal side, his only heir at law. We think that under our practice the facts were sufficiently stated, so as not to be obnoxious upon demurrer; that if the defendant desired them more fully stated he should have, filed his motion
Did the court commit error in sustaining the demurrer to the answer? The contention is that as the complaint alleged that.the paternal grandfather of Joseph Thompson, Kha-zhokah, the husband of plaintiff, had died 20 years before the bringing of the suit, and this allegation being material, and denied by the answer, the case ought to have gone to the jury on that issue. It is true that the averment of the death of Kah-zho-kah was material, and, if denied by the answer, the case should have been tried on that issue, because if he were alive, he, and not the plaintiff, was the heir of Joseph 'Thompson, and plaintiff would be without title. But was this allegation denied by the answer? The answer commences with the statement that the defendant “denies each and every, allegation in the complaint contained not hereinafter specially admitted.” The statute (section 5033, Mansf. Dig.; Ind. Ter. St. 1899, § 3238) does not require that the answer shall admit, specially or otherwise, any of the allegations of the complaint, but it does require that it shall specially “deny each allegation intended to be controverted. ” And a general denial is not sufficient. In the case of Guynn vs McCauley, 32 Ark. 105, the beginning of the answer was almost identical with this'case, and the court say: “It is true that in the beginning of- the anwer of Guynn he states that he “denies each, charge and allegation in said complaint contained, exceptas hereinafter specifically admitted, explained, or qualified.’ The answer must contain a denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it in sufficient. A general denial of the allegations of the bill is not sufficient. To prevent a material
The denial therefore, in this case, that John Thompson was dead, not having been specifically made, it was admitted.
There is no question but that the plaintiff is the lawful heir of the estate sued for, and it is just as certain that the defendant is in possession of the premises “unlawfully” and without right. His possession is alleged in the complaint, and the answer does not deny it, nor does it set up any title or right of possession in him.
But it is contended that as the widow of John Thompson was alive, and her dower has not been assigned to her, and that as she is not a party to the suit,'the plaintiff cannot recover, because she is’not entitled to the possession of the whole estate. When the widow’s dower has not been assigned to her, and she is not in possession, or has abandoned the possession, “the heir may always maintain ejectment for possession of the lands of which their ancestor died seised or possessed.” Newell, Eject. § 18. “The right (of dower) until assigned is inchoate, and cannot be set up in an action of ejectment against an hejr entitled to the fee. * * * Until it is assigned or set off, the person entitled to the fee may bring ejectment against any one wrongfully in possession, and recover.” Newell, Eject. § 15. The widow was not in possession, and in such case the heir may enter and occupy the premises, subject to the widow’s right to have dower assigned. Barnett vs Meacham, 62 Ark. 315, 35 S. W. 533; Padgett vs Morman, 44 Ark. 492.