Miller v. Stoner, 14550.
| Decision Date | 17 March 1941 |
| Docket Number | 14550. |
| Citation | 107 Colo. 317,111 P.2d 903 |
| Parties | MILLER v. STONER et al. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, Chaffee County; James L. Cooper, Judge.
Suit by H. W. Miller against S. P. Stoner and others, to remove alleged clouds on plaintiff's title to a mining claim wherein defendants filed a cross-complaint. To review a judgment of dismissal, plaintiff brings error.
Reversed and remanded, with directions.
John M Boyle and Charles F. Morris, both of Salida, for plaintiff in error.
Thomas H. Gibson, of Denver, and Thomas A. Nevens, of Salida, for defendants in error excepting S. P. Stoner.
These parties appear here in the same order as in the trial court and are hereinafter referred to as there.
Plaintiff's complaint is brief and simple. He alleges he is the fee owner of the Badger Lode Mining Claim, to which defendants claim an interest, 1, through Exhibit A, a tax deed void on its face and 2, Exhibit B, an amended tax deed void on its face. Copies of A and B are attached and the prayer is that the clouds thereby created on plaintiff's title be removed.
The answer denies plaintiff's ownership, denies the invalidity of the tax deeds, sets forth the alleged basis of plaintiff's claim, and attacks in detail his title. By corss complaint these allegations are repeated, demand made that plaintiff set forth in detail his alleged title, that it be held void, that defendants be adjudged the owners in fee that their title be quieted, and that plaintiff be enjoined from further claims. In the alternative defendants pray that their expenditures for taxes and improvements be ascertained and judgment for plaintiff be conditioned upon the repayment thereof. Plaintiff moved to strike from the answer and cross complaint so much thereof as set up in detail the alleged defects in his title, and supported defendants' prayer for affirmative relief. The motion was denied. Plaintiff then demurred to answer and cross complaint for want of facts. That demurrer was overruled. Plaintiff then replied to the answer and cross complaint, admitting most of the detailed facts, but denying the implications, and prayed as Before . Defendants demurred thereto for want of facts and withdrew their cross complaint. That demurrer was related back to the complaint and so sustained. Plaintiff elected to stand. Judgment of dismissal at plaintiff's costs followed. To review that judgment this writ is prosecuted. The four errors assigned go to the overruling of the motions to strike and the demurrer to the answer and cross complaint and to the sustaining of the demurrer to the 'complaint and replication.' However, the record discloses no ruling on the demurrer to the replication simply 'that the complaint fails to state a cause of action in that it...
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