State v. Johnson

New Mexico Supreme Court

State v. Johnson

188 P. 1109, 26 N.M. 20

CourtNew Mexico Supreme Court

DecidedFebruary 28, 1920

DocketNo. 2346

StatusPublished

Cited by15 cases

This text of 188 P. 1109 (State v. Johnson) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Johnson, 188 P. 1109, 26 N.M. 20 (N.M. 1920).

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Opinion

OPINION OP THE COURT.

MECHEM,

District Judge. The state of New Mexico brings this action to enjoin one W. L. Johnson from the practice of osteopathy and medicine without having a license. The complaint is in two counts. By the first it is charged that W. L. Johnson, was engaged in practicing osteopathy in the county of Bernalillo without having first obtained a license as required by law, and that such practice constitutes a nuisance, and is dangerous, detrimental, and injurious to the health of the inhabitants of the county of Bernalillo and state of New Mexico. The second count is the same as the first in all respects except that it is charged that the defendant is engaged in the practice of medicine without having first obtained a license as required by law. To the complaint the defendant demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action.

[1, 2] Our Code provides that complaints must contain “a statement of the facts constituting, the cause of action, in ordinary and concise language. ’ ’ Section 4104, Codification 1915. Examining the complaint, we find but one fact stated, viz. the practice of osteopathy or medicine without a license. The allegations that such practice is a nuisance, or is detrimental, dangerous, and injurious to the public health, are merely conclusions of the pleader.' Practicing osteopathy or medicine without a license is not a nuisance per se.

“Averments of mere conclusions are insufficient, and so, where the thing complained of is not a per se nuisance, the facts which make it such must be averred, and a mere averment that it is or will be a nuisance is not sufficient.” 29 Cyc. 1241.

The judgment of the lower court sustaining the demurrer and dismissing the complaint was correct, and it is therefore affirmed.

PARKER, C. J., and ROBERTS, J., concur.

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OPINION OP THE COURT.

MECHEM,

District Judge. The state of New Mexico brings this action to enjoin one W. L. Johnson from the practice of osteopathy and medicine without having a license. The complaint is in two counts. By the first it is charged that W. L. Johnson, was engaged in practicing osteopathy in the county of Bernalillo without having first obtained a license as required by law, and that such practice constitutes a nuisance, and is dangerous, detrimental, and injurious to the health of the inhabitants of the county of Bernalillo and state of New Mexico. The second count is the same as the first in all respects except that it is charged that the defendant is engaged in the practice of medicine without having first obtained a license as required by law. To the complaint the defendant demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action.

[1, 2] Our Code provides that complaints must contain “a statement of the facts constituting, the cause of action, in ordinary and concise language. ’ ’ Section 4104, Codification 1915. Examining the complaint, we find but one fact stated, viz. the practice of osteopathy or medicine without a license. The allegations that such practice is a nuisance, or is detrimental, dangerous, and injurious to the public health, are merely conclusions of the pleader.' Practicing osteopathy or medicine without a license is not a nuisance per se.

“Averments of mere conclusions are insufficient, and so, where the thing complained of is not a per se nuisance, the facts which make it such must be averred, and a mere averment that it is or will be a nuisance is not sufficient.” 29 Cyc. 1241.

The judgment of the lower court sustaining the demurrer and dismissing the complaint was correct, and it is therefore affirmed.

PARKER, C. J., and ROBERTS, J., concur.

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Bluebook (online)

188 P. 1109, 26 N.M. 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-nm-1920.

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