Berry v. French

• Decision Date: 13 October 1913
• Citation: 24 Colo.App. 519,135 P. 985
• Parties: BERRY v. FRENCH et al.
• Court: Colorado Court of Appeals

135 P. 985

24 Colo.App. 519

BERRY v. FRENCH et al.

Court of Appeals of Colorado

October 13, 1913

Appeal from District Court, Weld County; James E. Garrigues, Judge.

Action by Mattie M. Berry against Mrs. Marcella French and others. Judgment for defendants, and complainant appeals. Reversed and remanded.

Joseph C. Ewing and William R. Kelly, both of Greeley, for appellant.

H.E Churchill and James C. Scott, both of Greeley, for appellees.

CUNNINGHAM P.J.

Appellant Berry, as plaintiff below, filed her bill in the district court on May 14, 1910, for the purpose of having herself adjudged to be the owner of lots 1 and 2 in block 25 in the city of Greeley, and for an accounting for the rents, income and profits from said lots, which she alleged had come, under circumstances which we shall presently state, into the hands of D.L. and Hannah J. Dawley, husband and wife, both of whom had died prior to the bringing of the action. The defendants in this case, with the exception of Tuckerman, were the heirs and legatees of Hannah J. Dawley Tuckerman being the executor of the said Hannah's will. Appellant, hereinafter referred to as plaintiff, alleged that she was the niece of D.L. and Hannah J. Dawley; that D.L. Dawley died in 1881, making his wife, Hannah J. Dawley, his sole beneficiary, with the exception of a conditional legacy which lapsed; that prior to the death of D.L. Dawley there was money in his hands belonging to plaintiff to the amount of $1,244; that none of this money had ever been repaid to plaintiff except $75; that plaintiff was induced to leave said money in the hands of the said Dawleys upon their advice, and relying upon their assurances that they would invest the same in trust for her; that on May 27, 1879, the said Dawleys purchased the said lots 1 and 2 for a consideration of $441, taking the deed in the name of D.L. Dawley; that thereafter the said D.L. and Hannah J. Dawley held and possessed said lots in trust for plaintiff; that the purchase price of said lots was paid by the Dawleys from money belonging to the plaintiff and then in the possession of the said Dawleys as trustees for the plaintiff; that the said purchase was made as an investment for plaintiff; that Hannah J., as successor in trust of D.L. Dawley, after the latter's death, continued to the date of her own death in possession of said lots as trustee for plaintiff. Plaintiff further alleges that there came into the hands of the said Dawleys as the net income of said property an aggregate of $7,000; that the said property is now held by Tuckerman as successor in trust for plaintiff. There are other averments in the complaint which we think are in the nature of evidentiary matter, which it is not necessary for us to set forth in order that the contentions of the parties may be clearly understood.

1. To the amended complaint containing these averments, among others, the defendants filed a demurrer, which was in the following language: "(1) That the said amended complaint does not state facts sufficient to constitute a cause of action. (2) That said complaint is ambiguous, unintelligible, and uncertain." This is the only pleading which the record discloses that defendants filed. But defendants' attorneys say in their brief (though the record does not so indicate) that on the trial they interposed a demurrer ore tenus to the jurisdiction of the court, and that the trial court sustained the demurrer on all grounds. Plaintiff electing to stand on her complaint, judgment of dismissal was entered against her, from which judgment she appeals. The general demurrer is all that we can consider. The second ground of the demurrer, being special in its form, offends against the provisions of Code section 57, Revised Statutes, reading as follows: "The demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken; unless it do so, it may be disregarded." No attempt being made by the defendants in the second ground of their demurrer (which we have set out in haec verba) to point out wherein the complaint is ambiguous and unintelligible, we cannot consider that objection. Irwine v. Wood, 7 Colo. 477, 4 P. 783; Canfield v. Jeannotte, 31 Colo. 292, 72 P. 1062; Baden Baden G.M. Co. v. Jose, 20 Colo.App. 261, 78 P. 313. The first and sixth grounds of demurrer, as classified by our Code (Mills' Ann.Code, § 50), are sufficiently stated in the language of the statute. All other grounds will be disregarded, unless, in addition to the statutory language, the reasons or specific grounds therefore be stated. Mitchell et al. v. Pearson, 34 Colo.

278, 82 P. 446; Henderson v. Johns, 13 Colo. 280, 22 P. 461.

2. The demurrer of the defendants, interposed during the course of the...