Thelen v. Thelen

CourtUnited States State Supreme Court of Idaho
Citation188 P. 40,32 Idaho 755
PartiesCARL THELEN and WILLIAM THELEN, Infants, by LOUISE THELEN, Their Guardian, Appellants, v. WILLIAM THELEN, Respondent
Decision Date18 March 1920

188 P. 40

32 Idaho 755

CARL THELEN and WILLIAM THELEN, Infants, by LOUISE THELEN, Their Guardian, Appellants,
v.

WILLIAM THELEN, Respondent

Supreme Court of Idaho

March 18, 1920


PLEADING AND PRACTICE-SPECIAL DEMURRER-WAIVER.

1. The objection that the plaintiff is without legal capacity to sue must be taken by special demurrer or answer, or it is deemed to have been waived.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

Action to foreclose mortgage. Motion to dismiss sustained, and judgment entered for defendant. Reversed and remanded.

Reversed and remanded. Costs awarded to appellants.

Paul Pizey, for Appellants.

Devaney & Carter, for Respondent.

Counsel cite no authorities on point decided.

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

Appellants brought this action in the name of Carl Thelen and William Thelen, infants, by Louise Thelen, their guardian. The complaint alleges that Carl Thelen and William Thelen are under the age of twenty-one years; that in an action for divorce between their mother and father, the district court had previously entered a decree in which the care, custody and control of these minors was given to Louise Thelen, their mother; that the decree remains unchanged in this respect, and that Louise Thelen still has the guardianship of the minors and of their property. No demurrer to the complaint was filed, and the respondent answered to the merits. Upon the trial, when appellants rested [32 Idaho 756] their case, upon motion of respondent the action was dismissed and judgment entered against appellants for costs, upon the theory that Louise Thelen, their mother, had never been appointed guardian of their property.

The allegations of the complaint are not sufficient to set out the appointment of a general guardian, and the record does not disclose the appointment of a guardian ad litem for the purposes of the suit.

It appears on the face of the complaint that appellants did not have legal capacity to sue. This is ground for special demurrer. Having taken no objection upon this ground, either by demurrer or answer, the respondent must be deemed to have waived the same. (C. S., secs. 6689, 6692 and 6693; Trask v. Boise King Placers Co., 26 Idaho 290, 142 P. 1073; Anthes v. Anthes, 21 Idaho 305, 121 P. 553; Baldwin v. Second St. Cable R. Co., 77 Cal. 390, 19 P. 644; Blumauer v. Clock, 24 Wash....

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6 cases
  • Stafford v. Field, 7585
    • United States
    • United States State Supreme Court of Idaho
    • 9 d2 Maio d2 1950
    ...Anthes v. Anthes, 21 Idaho 305 at 311, 121 P. 553; Trask v. Boise King Placers Co., 26 Idaho 290 at 299, 142 P. 1073; Thelen v. Thelen, 32 Idaho 755 at 756, 188 P. 40; McGrath v. West End Orchard & Land Co., 43 Idaho 255 at 263, 251 P. 623; Younie v. Sheek, 44 Idaho 767, 260 P. 419; Jutila ......
  • McGrath v. West End Orchard & Land Co.
    • United States
    • United States State Supreme Court of Idaho
    • 30 d6 Outubro d6 1926
    ...or lack of capacity to sue, that such question should be raised by demurrer, and if not so raised it is a waiver." Also, in Thelen v. Thelen, 32 Idaho 755, 188 P. 40: objection that the plaintiff is without legal capacity to sue must be taken by special demurrer or answer, or it is deemed t......
  • Homefinders v. Lawrence, 8655
    • United States
    • United States State Supreme Court of Idaho
    • 16 d1 Fevereiro d1 1959
    ...P. 430; Danziger v. Peebler, 88 Cal.App.2d 307, 198 P.2d 719; Case v. Kadota Fig Ass'n of Producers, Cal.App., 207 P.2d 86; Thelen v. Thelen, 32 Idaho 755, 188 P. 40; Anthes v. Anthes, 21 Idaho 305, 121 P. 553. In Lobb v. Brown, Cal.App., 276 P. 583, 585, it is stated, 'When the want of cap......
  • Dahlstrom v. Walker
    • United States
    • United States State Supreme Court of Idaho
    • 29 d3 Dezembro d3 1920
    ...was therefore waived, and cannot be raised for the first time in this court. (Anthes v. Anthes, 21 Idaho 305, 121 P. 553; Thelen v. Thelen, 32 Idaho 755, 188 P. 40; Wilson v. Wilson, 26 Ore. 251, 38 P. 185; v. Wayland (Mo. App.), 188 S.W. 928.) It follows that the claims presented are lawfu......
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