30 Mont. 189 | Mont. | 1904
delivered the opinion of the court.
This action was brought in pursuance of Section 2326 of the Revised Statutes of the United States [U. S'. Comp. St. 1901, p. 1430], to determine an adverse claim to the Jennie M. quartz lode, situate in Silver Bow county. The adverse claim is-asserted by defendants under a location covering the same ground and called the “Rival lode.” The original complaint was held insufficient on general demurrer, but leave was granted to file an amended complaint. It is therein alleged that the plaintiff is the owner, in possession and entitled to the possession, of the Jennie M. lode, describing it; that defendants claim an estate
It is impossible to understand upon what theory the district court held this pleading insufficient. It appears therefrom that the plaintiff is in possession under claim of title, that the defendants had applied for a patent under the Nival location, that an adverse claim had been filed in the land office and allowed, and that the action was commenced within thirty days after such allowance. This is sufficient to sustain the action. (Mattingly v. Lewisohn, 8 Mont. 259, 19 Pac. 310; McKay v. McDougal, 19 Mont. 488, 48 Pac. 988; Murray v. Polglase, 23 Mont. 401, 59 Pac. 439; Hopkins v. Butte Copper Co., 29 Mont. 395, 74 Pac. 1081.) This, is true, whether the action be regarded as one to quiet title under Section 1310 of the Code of Civil Procedure — which in fact it is — or a special statutory proceeding under Section 1322. It was suggested in Mares v. Dillon, 30 Mont. 117, 75 Pac. 963, that the latter section possibly contemplates a special form of action for these cases; whether it does or not need not now be considered, for the reason that, if it does, the pleading is sufficient, because it contains
It is said that the court had no jurisdiction of the action because it is apparent that the amended complaint was filed long after the expiration of the thirty days from and after the suspension of the proceedings in the land office; in other words, the court cannot proceed to judgment in such cases unless a complaint stating a cause of action has been filed within thirty days after the filing of the adverse claim. This contention cannot be sustained. If the action is brought in time, it proceeds to effective judgment as other actions, and the court has the same power to allow amendments to pleadings as in other cases.
The complaint is not open to the objection stated in the last ground of demurrer. It is entirely clear from the pleading what the purpose of the action is, though it is alleged that a
The judgment is reversed, and the cause is remanded for further proceedings.
Reversed and remanded..