Phillips v. Smith

• Decision Date: 27 March 1908
• Docket Number: Civil 1012
• Parties: T. O. PHILLIPS, Plaintiff and Appellant, v. HOVAL A. SMITH and MARTIN COSTELLO, Defendants and Appellees
• Court: Arizona Supreme Court

95 P. 91

11 Ariz. 309

T. O. PHILLIPS, Plaintiff and Appellant, v. HOVAL A. SMITH and MARTIN COSTELLO, Defendants and Appellees

Civil No. 1012

Supreme Court of Arizona

March 27, 1908

APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan Judge. Reversed and remanded.

The facts are stated in the opinion.

L Kearney, for Appellant.

The only question presented to the court is, whether or not the complaint states facts sufficient to constitute a cause of action. The case presents an elementary principle -- how a pleading should be construed against a general demurrer. The action is in the nature of ejectment, and complies with the provisions of section 4112, Revised Statutes of 1901. "Even on demurrer the pleadings are to be liberally construed. The complaint on demurrer must be deemed to allege that which can be implied from the allegations therein by reasonable and fair intendment. And a reasonable construction will be given, although the facts are imperfectly or informally averred and argumentatively stated, or the pleading lacks definiteness and precision." 4 Ency. of Pl. & Pr. 749, 755, 756; Sante Fe v. Hurley, 4 Ariz 258, 36 P. 217; Shea v. Nilima, 133 F. 214, 66 C.C.A. 263; Cone v. Ivinson, 4 Wyo. 203, 33 P. 31 35 P. 935; Pomeroy's Code Remedies, 3d ed., sec. 549; Id., 4th ed., sec. 443, p. 599, n. 2; Rauh v. Oliver, 10 Idaho 3, 77 P. 22. The pleading must be construed as a whole, and if it can be determined therefrom what is intended, the pleading is sufficient, and that construction must be given which will support the pleading and reach the real intent of the pleader. 4 Ency. of Pl. & Pr., 744-746; 6 Ency. of Pl. & Pr., 346, 369, 389.

Seth E. Hazzard, for Appellees.

Whether the form of the action be at law to recover possession or in the nature of a suit to quiet title, plaintiff must allege the facts which will entitle him to the possession of the ground in controversy against the government as well as against his adversary. Providence Gold Min. Co. v. Burke, 6 Ariz. 323, 57 P. 643; Keppler v. Becker, 9 Ariz. 234, 80 P. 334. The party filing the contest should allege and prove every step necessary to establish his right to his mining claim that would be required in the land office for patent, with the exception of the advertisement and the certificate of the surveyor general as to the amount of work required before patent could be obtained. Allyn v. Schultz, 5 Ariz. 152, 48 P. 960. The plaintiff, in order to recover in an adverse suit, must show that he is the owner of a valid and subsisting location of the land in dispute, superior in right to that of defendants, and he must recover on the strength of his own title and not on the weakness of that of his adversary. Gwillim v. Dennellan, 115 U.S. 45, 5 S.Ct. 1110, 29 L.Ed. 348. To render the complaint sufficient in an adverse suit, plaintiff must allege that the ground in controversy was mineral land subject to location. Keppler v. Becker, 9 Ariz. 234, 80 P. 334.

The allegation of the plaintiff in his complaint that the ground in controversy was unoccupied public mineral land, open to plaintiff's location, is governed by the allegations of the facts whereby it became so open to location, and these do not justify the conclusion deduced from them, and the resulting allegation is a nullity. "It is a rule of pleading that where a general result or fact is pleaded, and also the special facts by which such result is reached, and they do not support the result, the special facts control, and the pleading is bad." Carlson v. Presbyterian Board etc., 67 Minn. 436, 70 N.W. 3; First Nat. Bank v. St. Croix Boom Co., 41 Minn. 141, 42 N.W. 861; McPheeters v. Wright, 110 Ind. 519, 10 N.E. 634; Pinney v. Fridley, 9 Minn. 34.

OPINION

NAVE, J.

-- T. O. Phillips brought suit against Hoval Smith and Martin Costello to quiet title to a mining claim in support of an adverse proceeding pending in the land office. Defendants demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, plaintiff having declined to amend, judgment was rendered against him. From this judgment he has appealed. The question before us, therefore, is whether the complaint states a cause of action.

The complaint is long, is involved, and pleads several pages of evidential matter. It would not be useful to set it forth in full, or to abstract it. It will suffice to take up the defects urged against it by the appellee Smith through his counsel.

1. Plaintiff, the subsequent locator, seeks in his complaint to show that the defendants, prior locators, have not had a valid mining location, and specifies in detail the alleged deficiencies in the location proceedings. Among other matters in this behalf he pleads "that the said Key lode defendants' claim, was never marked nor monumented on the ground so that the boundaries thereof could be distinctly traced, and that the surface boundaries of the said Key lode were never marked by any substantial posts projecting four feet above the surface of the ground, nor by substantial stone monuments three feet high, nor to mark or monument the same at all." The infinitive verbs in the concluding clause of this allegation do not have, as infinitives, a syntactical relation with any finite verb in the sentence. It has been held by this court that, in construing the language of a complaint, "we should make every reasonable intendment, and . . . sustain the pleading, if possible." Santa Fe etc. Ry. Co. v. Hurley, 4 Ariz. 258, 36 P. 216. In Pomeroy's Code Remedies, third edition, section 549, the author has said: "The true doctrine to be gathered from all the cases is that, if the substantial facts which constitute a cause of action . . . can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete and defective -- such insufficiency pertaining, however, to the form rather than to the substance -- the proper mode of correction is not by demurrer, . . . but by motion before the trial to make the averments more definite and certain by amendment. . . . If the pleader should aver conclusions of law in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance. The mode of correction would be by motion, and not by a demurrer." See, also, Gill v. Manhattan Life Ins. Co.,...