201 P. 567 | Mont. | 1921
prepared the opinion for the court.
Appeal by defendant from a judgment of default entered against her and from an order made subsequent to judgment.
The original complaint herein was filed on June 9, 1916, and personal service was had upon the defendant at Dillon, Montana, on that day. Subsequently demurrers were filed consecutively to the original complaint and the first, second, and third amended complaints, which demurrers were sustained. A fourth amended complaint was filed, and the
Various reasons are alleged in the affidavit why the de
It is apparent from the complaint that the only description
If this default judgment is permitted to stand, and plaintiff should bring another action against defendant for the purchase price of a specific tract of land, the record here would
The statute (sec. 6534, Rev. Codes) authorizes a demurrer to be filed for the reasons stated in the demurrer filed herein. A complaint may be uncertain by reason of its failure to allege matters essential, as well as by the doubtful meaning conveyed by what is alleged. A complaint, to be proof against a special demurrer, ought at least to be sufficiently definite and certain to be on its face a bar to another suit on the same cause of action. The land herein should have been described in some manner so that the particular tract could have been identified. (See opinion of Justice Sharswood in Hester v. McNeille, 6 Phila. (Pa.) 263.)
Neither does the complaint allege that the “reasonable value” was the consideration for which transfer was made, nor are there any facts stated or circumstances given from which such fact may be implied, inferred, or presumed. Aside from facts and circumstances that would call into requisition the doctrine of estoppel, the equity power of a court, or in
Conceding that title may be transferred without agreement as to specific consideration, and that the reasonable value of the land might control, -yet the fact remains that the parties must have contracted with reference to some consideration, and some fact should be alleged which shows the relation between the purchaser and the consideration for which judgment is demanded against him.
The date of this real estate transaction is stated in the complaint as July 1, 1903, but plaintiff demanded and was granted interest from June 1, 1903. No reason appears why plaintiff was awarded interest for this extra month. This alone, however, if error, would be insufficient to -justify a reversal, for the error could be cured.
We believe the special demurrer to the seventh cause of action alleged in the fourth amended complaint should have been sustained. It is assumed by the respondent that the default should be set aside if the respondent has failed to state a cause of action in either of the seven counts set out in his fourth amended complaint. We do not stop to consider
We recommend that the judgment and order appealed from ' be reversed and the cause remanded for further proceedings.
Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause remanded for further proceedings.
Reversed.