Limberg v. Higenbotham

• Court: Colorado Supreme Court
• Writing for the Court: BECK, C.J., ( after stating the facts as above.)
• Citation: Limberg v. Higenbotham, 11 Colo. 156, 17 P. 481 (Colo. 1888)
• Decision Date: 09 March 1888
• Parties: LIMBERG v. HIGENBOTHAM et al.

17 P. 481

11 Colo. 156

LIMBERG v. HIGENBOTHAM et al.

Supreme Court of Colorado

March 9, 1888

Error to district court, Lake county.

The object of this action was to recover from the defendants Higenbotham & Barnes, mesne profits received by them from tenants who occupied a portion of lots 1 and 2 of the Leadville Improvement Company's addition to the city of Leadville, pending action by said company for possession. The defendants to that action originally were De Lay, Cottrell Mallan & Franklin. The suit was afterwards dismissed as to Cottrell, and prosecuted to final judgment against the other defendants. The plaintiff in that action, the Leadville Improvement Company, sold and conveyed the property mentioned to Charles T. Limberg, the plaintiff in the present action on February 20, 1879, and, in order to deliver possession to the purchaser, brought suit in the court below against the parties then in possession, on April 26th following. These defendants, Higenbotham and Barnes, were not parties to the suit, they having entered into possession under the defendants therein, or some of them, pending the suit. They are charged in the present action with having collected and received from tenants in possession a large amount of rents and profits. Judgment was rendered in the ejectment suit in the court below, April 12, 1882, and final judgment, upon appeal in this court, December 4, 1883. A writ of possession was issued and executed, by putting the plaintiff in that suit into possession of the premises, on December 5, 1883 and the present action for mesne profits was brought on the day last mentioned.

C. H. Wentzel and F. W. Owens, for plaintiff in error.

Rogers & McCord and E. M. Hurlbut, for defendants in error.

BECK C.J., ( after stating the facts as above.)

The controlling question in the present case arises upon the pleadings. If they can be held sufficient to constitute a triable issue, and to sustain an action for the recovery of mesne profits of land, the court erred in excluding the evidence offered by the plaintiff on the trial tending to prove the amount of damages sustained, and likewise in nonsuiting the plaintiff. The Code of Procedure requires the complaint to contain a statement of the facts which constitute the cause of action. This the complaint in the present case failed to do. That it was insufficient, therefore, in itself admits of no discussion. It was simply the 'common count for money had and received by the defendants to and for the use of the plaintiffs,' the only facts stated being the amount alleged to have been so received, viz., $22,225, and that the defendants received said sum at the county of Lake between the 1st day of January, 1879, and the 4th day of December, 1883. The complaint did not inform the defendants, from whom they were charged with receiving this money, on what account it had been received, or how the plaintiff became entitled to any money received by them within the dates mentioned in the complaint. But instead of taking advantage of the defect by demurrer, or motion to have the complaint made more specific, as they might have done, the defendants answered it, denying the allegations made therein, and adding the following averments: 'That they have been informed that said action was intended to be an action against these defendants for mesne profits for certain real estate, and defendants allege that they have a full and complete defense to any such action. * * * And defendants further allege that any interest in or title to said premises which plaintiff has, was acquired by him since the first day of December, A. D. 1883.' It was further alleged in the answer that any cause of action which the plaintiff could have maintained against the defendants had been adjudicated and determined before the commencement of this suit as between the parties thereto and their predecessors in interest. The answer also contains the following allegations: 'And these defendants further allege that there is a non-joinder of parties defendant in this action; and further allege that there is misjoinder of parties to this action.' To this answer the plaintiff replied, denying the misjoinder and non-joinder of parties; denying that the matters in controversy were res adjudicata, and that the property referred to was acquired by the plaintiff since December 1, 1883; and alleging that the title to the property had been in the plaintiff since the time mentioned in the complaint.

The complaint and answer were certainly very informal. They violate all rules of pleading, and, considered separately neither could be sustained against the objections that might have been interposed. Both signally fail to observe the primary rule of Code pleading, viz., that the facts constituting the cause of action must be set forth. But, as far at the parties were able to do so, all objections were waived. While the plaintiff failed on his part to inform the defendants under what circumstances they became indebted to him, or how he became entitled to any money received by them within the period mentioned in his complaint, the defendants appear to have supplied the defect in and by their answer. By it they say substantially: 'We know the nature of your claim, and the account on which it is founded. Your claim is for mesne profits received by us from the rents of certain lands claimed by you; but we have a complete defense to your action. Your title to the land was not acquired within the dates mentioned in your complaint, within which you charge us with having received rents, and if you had a right of action against us on account of such rents or otherwise, it was fully adjudicated before the commencement of this action, both as to the parties to this suit, and as to their predecessors in interest. And,...