Davenport v. Burke

• Citation: 27 Idaho 464,149 P. 511
• Parties: HORACE M. DAVENPORT, MILTON J. FLOHR, CHARLES W. BETTS, CHARLES F. ASP, CHARLES W. BETTS, Administrator of the Estate of BARRY N. HILLARD, Deceased, WILLIAM M. CLARK, THOMAS KELLY, BEN STANLEY REVETT and JOHN H. WOURMS, Respondents, v. PATRICK BURKE, Appellant
• Decision Date: 05 June 1915
• Court: Idaho Supreme Court

149 P. 511

27 Idaho 464

HORACE M. DAVENPORT, MILTON J. FLOHR, CHARLES W. BETTS, CHARLES F. ASP, CHARLES W. BETTS, Administrator of the Estate of BARRY N. HILLARD, Deceased, WILLIAM M. CLARK, THOMAS KELLY, BEN STANLEY REVETT and JOHN H. WOURMS, Respondents, v. PATRICK BURKE, Appellant

Supreme Court of Idaho

June 5, 1915

ASSIGNMENTS OF ERROR NOT DISCUSSED-MOTION FOR JUDGMENT ON PLEADINGS-ISSUE RAISED-ERROR TO GRANT JUDGMENT.

1. Where assignments of error are set out in counsel's brief as prescribed by the rules of this court, but are not discussed either in the brief or upon oral argument, and where no authorities are cited in support of said assignments of error, the same will not be considered or determined by this court.

2. When a party moves for judgment on the pleadings he, not only for the purposes of his motion, admits the truth of all the allegations of his adversary, but must also be deemed to have admitted the untruth of all his own allegations which have been denied by his adversary. (Walling v. Bown, 9 Idaho 184 72 P. 960, approved and followed.)

3. A judgment on the pleadings results from the fact that the answer does not put in issue any of the material allegations of the complaint, or where the pleadings show upon their face that the party is entitled to recover without proof. A judgment on the pleadings is allowable not because of lack of proof, but because of the lack of an issue.

4. Where issues of fact are raised by the pleadings which require evidence to establish before the court can intelligently determine whether such issues are with the plaintiff or defendant, it is error to enter judgment on the pleadings.

5. If but one defense is good, the entire pleading cannot be deemed frivolous or subject to a motion for judgment on the pleadings.

6. Motion for judgment on the pleadings should not be granted unless it clearly appear on the face of the pleadings that there are no material issues raised by the same.

7. Held, under the facts in this case that there were material issues raised by the pleadings, and that it was reversible error for the trial court, upon a mere motion, to adjudge and determine the rights of the parties to this litigation without a hearing.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. John M. Flynn, Judge.

Action for the cancellation of certain contracts to purchase mining claims, and for the possession thereof; that defendant be enjoined from interfering with plaintiffs' possession. Reversed.

Reversed and remanded. Costs awarded to appellant.

James A. Wayne, for Appellant.

When a party moves for a judgment on the pleadings he not only admits the truth of all of the allegations of the answer, but he also admits the untruth of all of the allegations of his complaint which the defendant has by his answer denied. ( Walling v. Bown, 9 Idaho 184, 72 P. 960; Mills Novelty Co. v. Dunbar, 11 Idaho 671, 83 P. 932; Idaho Placer Min. Co. v. Green, 14 Idaho 294, 94 P 161.)

James E. Gyde and John H. Wourms, for Respondents.

Only those things are admitted by motion for judgment on the pleadings which are well pleaded and which are statements of fact and not conclusions of law. Calling a thing a fraud does not necessarily make it so. Where the denials of an answer are not sufficient to make an issue, the court errs in denying plaintiff's motion for judgment on the pleadings. (Toledo etc. Scale Co. v. Young, 16 Idaho 187, 101 P. 257.)

BUDGE J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This is an action brought in the district court of the first judicial district for Shoshone county, to cancel two certain contracts for the purchase of mining claims hereinafter referred to, and to declare said contracts null and void and not a cloud upon plaintiffs' title, and for the possession and right to the possession of said mining claims as against the defendant.

The rulings of the trial court in this case were upon issues of law raised on the pleadings. We have therefore concluded that it will not be necessary to set out in full all of the allegations of the complaint, the denials and affirmative allegations contained in the second amended answer of the defendant to the complaint. To the said amended answer, separate demurrers were filed by the plaintiffs and by the court overruled. Separate demurrers of each of the plaintiffs were filed to the second amended cross-complaint of the defendant and were by the trial court sustained, whereupon the defendant declined to amend his said second amended cross-complaint and the same was dismissed. On May 16, 1915, the plaintiffs moved the court for judgment on the pleadings, to wit, the complaint and the second amended answer, which motion was by the trial court sustained. Judgment was thereupon rendered and entered against the defendant and in favor of the plaintiffs as prayed for in plaintiffs' complaint. This is an appeal from the judgment.

It will not be necessary, for the purpose of disposing of this case, to discuss the action of the trial court in sustaining the separate demurrers of the plaintiffs to the second amended cross-complaint of the defendant, for the reason that counsel has not deemed it necessary to discuss the action of the court in this respect, although assigned as error in his brief. Where assignments of error are made in counsel's brief but not discussed either in the brief or upon oral argument, and where no authorities are cited in support of the assignment of error, said assignment will not be discussed by this court. (Idaho Merc. Co. v. Kalanquin, 8 Idaho 101, 66 P. 933; Farnsworth v. Pepper, ante, p. 154, 27 Idaho 154, 148 P. 48.)

We will confine ourselves to a discussion of the second and third assignments of error in appellant's brief, to wit, second, "The court erred in sustaining plaintiffs' motion for a judgment on the pleadings"; third, "The court erred in entering the judgment of dismissal." In order to determine whether the court erred in sustaining the plaintiffs' motion for judgment on the pleadings, and thereafter entering up judgment of dismissal, it becomes necessary to refer briefly to the allegations of the complaint, the denials and affirmative allegations of the answer.

Among other things it is alleged in the complaint of the plaintiffs that on June 3, 1912, the plaintiffs, with the exception of John H. Wourms, were the owners of certain lode mining claims situate, lying and being in Beaver mining district, county of Shoshone, state of Idaho, known as the "Amazon," "Manhattan," "Monitor," "Ajax," "Glenwood," "Staten Island," "New York" and "Merrimac" group of mining claims.

It is alleged that there were two options to purchase the above-named mining claims given to the defendant by the owners thereof, part of whom resided in Wallace, Idaho, and the others in Denver, Colorado. For the purpose of brevity the contracts will be treated and referred to in this opinion as one.

The plaintiffs allege that the consideration to be paid by the defendant under the option to purchase the mining claims referred to was $ 160,000, which said amount was divided into various sums, the first payment of $ 16,000 falling due on or before December 3, 1912, which amount the plaintiffs allege the defendant did not pay, and that by reason of his failure so to do plaintiffs brought this action.

The contracts marked exhibits "A" and "B," attached to and made a part of plaintiffs' complaint, among other things, provided: First, that Burke was to have the immediate possession of said property; second, that the deed conveying the interest of the plaintiffs to the mining claims was to be placed in the First National Bank at Wallace, Idaho, and the First National Bank of Denver, Colorado, to be delivered to Burke upon the payment of the installments as they became due under the contract of purchase; third, Burke, under the terms of the contract, agreed to do certain development work; fourth, it was agreed that Burke might extract and ship certain ore from said mining claims; fifth, twenty-five per cent of the net smelting returns from all shipments of ore were to be applied upon the payments; sixth, it was to be provided that all buildings and machinery placed upon the property by Burke should become the property of the owners in the event Burke did not comply with the conditions of the contracts; seventh, it was agreed that Burke should save the owners from any liens, judgments, liabilities or indebtedness of any kind or nature during the life of the agreement; eighth, that time was of the essence of the contracts; ninth, that nothing in the contract should be so construed as to compel Burke to purchase said mining claims or render him liable in damages if he failed so to do, if he finally concluded not to avail himself of the conditions of the contract.

The complaint sets forth that the plaintiffs had performed all of the things prescribed to be performed by them under the provisions of the contract, and at the time of the commencement of the suit Burke had paid $ 175 on the purchase price. It is further alleged that prior to the commencement of this action the owners of the mining claims involved in this litigation gave to one John H. Wourms, who is made a respondent in this action, an option to purchase these same mining claims; that Wourms had demanded of Burke the possession of said claims, but he had refused to deliver the possession or to pay the balance due on December 3, 1912.

The plaintiffs pray that it be decreed that the defendant had violated the terms and conditions of the agreements and that said contracts be canceled and held for naught, and that the defendants be enjoined from interfering with the possession of the plaintiffs in...