Carter v. Wann

• Citation: 6 Idaho 556,57 P. 314
• Parties: CARTER v. WANN
• Decision Date: 11 May 1899
• Court: United States State Supreme Court of Idaho

57 P. 314

6 Idaho 556

CARTER v. WANN

Supreme Court of Idaho

May 11, 1899

PLEADINGS - PRACTICE-DEMURRER-ANSWER.-Objections to a com-complaint that "the action is not brought in the name of the real parties in interest, as is shown by the face of the complaint"; "that the plaintiff has not legal capacity to sue in this action; that several causes of action have been improperly united"; "that the complaint is ambiguous, unintelligible and uncertain," must be taken by demurrer, or answer, and when not so taken will be deemed to be waived.

SAME-GENERAL DEMURRER.-When the complaint states a good cause of action although joined with a cause of action that is demurrable, a general demurrer that the complaint does not state facts sufficient to constitute a cause of action, will not lie.

TRESPASS UPON LANDS OF INDIANS BY ALLOTMENT.-Indians holding lands by allotment are entitled to bring suit for trespass upon such lands.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Judgment affirmed, with costs.

H. F Burleigh, for Appellants.

A person cannot sue in his own right and also in a representative capacity in the same action. (1 Ency. of Pl. & Pr., 177; Bliss on Code Pleadings, c. 3, sec. 22, c. 9, sec 117, c. 20, secs. 408, 413, 414.) Sections 1300 and 1301 and sections 1320, 1321 of the Revised Statutes of Idaho and amendments thereto, are as much in force in this state as sections 1210 and 1211, and that said sections of the statute must be construed together, and that no damages can be recovered for trespass upon uninclosed lands of an individual. (Logan v. Gedney, 38 Cal. 579; Rivers v. Burbank, 13 Nev. 398; Idaho Rev. Stats., secs. 1300, 1301, 1320, 1321.) The land in question is government land, and will remain so for about twenty years yet, and plaintiff may never acquire title to the same. The land has never been segregated from the public domain. (Idaho Rev. Stats., c. 4, tit. 10; Wolfskill v. Malajowich, 39 Cal. 276; Logan v. Gedney, 38 Cal. 579.)

James W. Reid, for Respondent.

The record shows that William Carter was the owner and lawfully in possession of the land. This disposes of the error alleged, that he is not the real party in interest, or that several causes of action have been improperly united. The other objection that the plaintiff has not legal capacity to sue in this action was settled in this court by a recent decision. (Wa-La-Note-Tke-Tynin v. Carter, ante, p. 85, 53 P. 106.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This is an action brought in the justice's court, under the provisions of chapter 6, title 7, of the Revised Statutes. Section 1210 of the Revised Statutes provides as follows: It is not lawful for any person owning or having charge of sheep, to herd the same, or permit them to be herded, on the land or possessory claims of other persons, or to herd the same or permit them to graze within two miles of the dwelling-house of the owner or owners of such possessory claim." Sections 1211 and 1212 provide for the recovery of damages by the party injured by a violation of said section 1210. The plaintiff is a Nez Perces Indian, holding lands by allotment under the treaties between said Nez Perces Indians and the United States government.

The plaintiff's complaint alleges "that, during all the times hereinafter mentioned, he was and now is the owner and lawfully in possession of all that certain real estate situated in the county of Nez Perces, state of Idaho and described as follows: Lots 14, 15, 16, 23, and 32, section 6 township 35 north, range 3 west, Boise meridian, containing one hundred acres, belonging to William Carter; lots 22, 33, 34, and 35, section 6, township 35 north, range 3 west, Boise meridian, containing eighty acres, allotted to Mary Carter, deceased; lots 8, 9, 24, and 25, section 5, lot 36, section 6, township 35 north, range 3 west, Boise meridian, containing one hundred and twenty-nine one-hundredths acres, allotted to Ip-nah-san-lah-kuskt; lots 6, 7, 12, 13, 24, 25, 30, and 31, section 6, township 35 north, range 3 west, Boise meridian, containing one hundred and sixty acres, allotted to Elizabeth Carter." Then follows the allegation of the trespass, the damage, and the prayer for judgment. No demurrer appears to have been filed to the complaint. The defendants answered separately, denying all the allegations of the complaint. The answers are identical. The record does not show the result of the trial in the justice's court, nor which party brought the case into the district court; but in the district court the cause was tried de novo without any alteration in, or amendment of, the pleadings filed in the justice's court. The cause was tried in the district court with a jury, who rendered a verdict in favor of plaintiff for the sum of $ 100; and it is from the judgment entered upon said verdict, and the order overruling defendants' motion for a new trial, that this appeal is taken. At the trial in the district court the defendants objected to the introduction of any evidence, under the complaint, upon the following grounds: "1. That the action is not...