72 P. 960 | Idaho | 1903
This action was commenced in the probate-court of Elmore county, and defendants, Charles Bown and L. L. Ormsby, filed á general demurrer which wás, presumably, overruled and an answer was thereafter-filed. The cause went to trial and judgment was entered in favor of the plaintiff. Defendants appealed to the district court and the record recites that “the original complaint was amended and the amended answer was filed by leave of the court”; but the record does not contain anything purporting to he an amended complaint.
This action was sought to be prosecuted under the provisions of sections 1210 and 1211 of the Revised Statutes, commonly designated throughout this state as the “two mile limit law.” After a careful examination and analysis of the complaint and answer, I am convinced that the pleadings in this case do not contain sufficient material facts standing alone, undisputed, tor entitle plaintiff to a judgment thereon. I have not arrived at this conclusion from any construction of my own placed upon sections 1210 and 1211, supra,; but have rather tested these pleadings by the construction placed upon said sections by this court in Sifers v. Johnson, 7 Idaho, 798, 97 Am. St. Rep. 271, 65 Pac. 709, 54 L. R. A. 785, and Sweet v. Ballentine, 8 Idaho, 431, 69 Pac. 995.
When the plaintiff moved for judgment on the pleadings, he not only, for the purposes of his motion, admitted the truth of all the allegations of the answer, but he must also be deemed to have admitted the untruth of all his own allegations which defendants had denied. The record in this case is by no means satisfactory. Yiewed in the light of the statutes and decisions supra, it would be difficult to say that the complaint before us would support a judgment, and the answer is by no means clear as to some of the facts — whether it is intended to admit or deny them.
The judgment should he reversed and cause remanded. It is so ordered. Costs awarded to appellants.