Swanholm v. Reeser
| Citation | 2 Idaho 1167,31 P. 804 |
| Parties | SWANHOLM v. REESER |
| Decision Date | 30 December 1892 |
| Court | United States State Supreme Court of Idaho |
1. The denial of indebtness, without a denial of the facts alleged in the complaint, out of which such indebtness arose or follows, is a conclusion of law, and raises no issue of fact.
2. A defense set up by way of counter-claim, alleging that the plaintiff is indebted to defendant in the sum of $156 for use of a certain building, and for $1,265.75 for certain gold bullion, without alleging that said sums are due, or that defendant is entitled to credit therefor on the demand sued on, is no defense.
Appeal from district court, Elmore county; C. O. STOCKSLAGER, Judge.
Action in assumpsit by Henry Swanholm against Jacob Reeser. Defendant had judgment, and plaintiff appeals. Reversed.
Wyman & Wyman, for appellant.
August Quitzow and H. W. Weir, for respondent.
This action was brought in the probate court of Elmore county upon a demand for goods, wares, and merchandise sold and delivered to the respondent, and for cash advanced to respondent claimed to be of the value of $563.83, and that respondent is entited to a deduction of $41 from said amount because of certain indebtedness due from appellant to respondent. The respondent interposed an answer, which was demurred to by appellant. The demurrer was sustained, and thereupon respondent filed his amended answer. A general demurrer was interposed to the amended answer, and overruled by the court. The case was tried by the court without a jury, and judgment entered in favor of respondent. Thereupon the cause was appealed to the district court and there tried before the court with a jury, and a judgment entered in favor of the respondent. This appeal is from said judgment of the district court, on the judgment roll alone.
The only question for determination is as to whether the court erred in overruling the demurrer to the amended answer. The cause of demurrer therein stated is that the amended answer does not state facts sufficient to constitute a defense to appellant’s action, or a counterclaim, or a cross action. The appellant, who was plaintiff in the court below, states his cause of action in the first paragraph of his complaint, and it is as follows: "The plaintiff complains and alleges that the defendant is indebted to the plaintiff in the sum of five hundred sixty-five 83/100 dollars, upon an account for goods sold and delivered, and cash, money of the United States, advanced by the plaintiff to the defendant, at his request, at Rocky Bar, Elmore county, Idaho, between the 1st day of May, 1886, and the 5th day of June, 1889, and that the same is now due and payable, but said sum has not been paid nor any part thereof, except the sum hereinafter mentioned." The denial in the answer is as follows: "That the defendant is not indebted to the plaintiff in any sum...
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