O'Donnel v. Gainan

43 P. 713, 17 Mont. 490, 1896 Mont. LEXIS 22

• Court: Montana Supreme Court
• Decided: February 10, 1896
• Status: Published

Opinion

Per Curiam.

The defendants and the intervenor appeal from the judgment rendered against them upon the sustaining of plaintiff’s demurrers to the answer and the petition in intervention. The action was ejectment and injunction to stay waste. The complaint set up the acquisition, of a mining title by plaintiff, by performance of the acts required for the location of a mining claim. The position of the intervenor was that he owned the premises as a mining claim, and had leased the. same to the defendants. The answer of the defendants and the petition of the intervenor denied specifically all the material allegations of the complaint, and undertook to set forth a title in the defendants and the intervenor. The plaintiff demurred to the answer and petition, on the ground that they did not set up facts constituting a defense. The demurrers were sustained, and judgment accordingly entered for the plaintiff. From the judgment, defendants and intervenor appeal.

One of the counsel for respondent has filed a brief, in which he contends for the correctness of the ruling of the district court. Another of the counsel for the respondent appeared in court upon the oral argument, and stated that in his opinion the ruling of the court below could not be sustained; that is to say, he confessed error. We have no doubt whatever that counsel is correct in this confession. It does not seem to us to be necessary to go further into the case. The judgment is therefore reversed, and the case is remanded, with instructions to the district court to overrule the demurrers.

Deversed.