Amter v. Conlon

• Decision Date: 27 January 1896
• Parties: AMTER v. CONLON.
• Court: Colorado Supreme Court

43 P. 1002

22 Colo. 150

AMTER v. CONLON.

Supreme Court of Colorado

January 27, 1896

Error to court of appeals.

Action by Anna Conlon against Marks Amter to quiet title to real property. From a judgment of the court of appeals (3 Colo.App. 185, 32 P. 721) affirming a judgment in favor of plaintiff, defendant brings error. Affirmed.

Marks Amter, pro se.

Anna Conlon, pro se.

John H Reddin, for defendant in error.

GODDARD J.

This is an action brought by the defendant in error against the plaintiff in error to quiet her title to lot 19 in block 3 of H. Witter's addition to the city of Denver, under sections 255 and 256 of the Code of Civil Procedure of 1887 which provide:

'Sec. 255. An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate therein adverse to him, for the purpose of determining such adverse claim, estate or interest.

'Sec. 256. If the defendant in such action disclaim in his answer, any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff shall not recover costs.'

Her complaint, in substance, alleges that she is the owner in fee simple and in possession of the lot, that the plaintiff in error claims an estate or interest therein adverse to her, and that such claim is without any right whatever. To her complaint the plaintiff in error interposed a demurrer upon the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was overruled, and plaintiff in error answered by a general denial and by an affirmative defense, setting up a claim to the property by virtue of a certificate of sale issued to him by the sheriff in pursuance of a sale of the lot under a judgment against the husband of defendant in error. To this answer a replication was filed. Thereupon plaintiff in error moved for judgment upon the pleadings, which was denied. The case was tried to the court, which found the issues in favor of defendant in error, and that she was the owner in fee simple of the premises, and in possession of the same, at the time of the commencement of the suit; that plaintiff in error had no estate, right, title, or interest in the premises,--and rendered judgment accordingly. On an appeal to the court of appeals the judgment of the district court was affirmed. To reverse this judgment, defendant below brings the case here on error. For a more elaborate statement, see Amter v. Conlon, 3 Colo.App. 185, 32 P. 721.

The assignments of error present but two questions: First, whether the complaint states facts sufficient to constitute a cause of action; and, second, whether the testimony is sufficient to sustain the findings of the district court.

1. In support of the first proposition, counsel contend that the complaint is defective in not setting forth the nature and character of plaintiff in error's claim to...