Town of Denver v. City of Spokane Falls

• Decision Date: 07 November 1893
• Citation: 7 Wash. 226,34 P. 926
• Parties: TOWN OF DENVER v. CITY OF SPOKANE FALLS ET AL.
• Court: Washington Supreme Court

34 P. 926

7 Wash. 226

TOWN OF DENVER v. CITY OF SPOKANE FALLS ET AL.

Supreme Court of Washington

November 7, 1893

Appeal from superior court, Spokane county; Jesse Arthur, Judge.

Action by the town of Denver against the city of Spokane Falls and others to restrain defendants from proceeding with the annexation of the town to the city. From a judgment for defendants, plaintiff appeals. Affirmed.

Thomas C. Griffitts, for appellant.

James Dawson, Corp. Counsel, and Jones, Belt & Quinn, for respondents.

ANDERS J.

This controversy grew out of an assumption on the part of the defendant city of Spokane Falls to exercise authority and jurisdiction in municipal matters over certain territory claimed by the plaintiff, the town of Denver, to be embraced within its corporate limits. The defendants claimed that the disputed territory was legally annexed to the city of Spokane Falls, and became a part thereof, by virtue of an election held for that purpose on July 26, 1890, in conformity with the provisions of section 9 of the act of March 27, 1890 entitled "An act providing for the organization classification, incorporation and government of municipal corporations, and declaring an emergency," and that the inhabitants of the alleged town of Denver ever since have been, and still are, amenable to the same laws and ordinances by which the remaining portion of the city is governed and regulated, and that its officers have the same powers there that they may lawfully exercise elsewhere within the corporate limits of the city. On the contrary, the plaintiffs contend that the town of Denver was, long prior to and at the time of said annexation proceedings, a legally organized and acting municipal corporation, and that said proceeding was, as to it, illegal, null, and void; and it sought, by this action, to restrain the defendants from proceeding further in the matter of said election, or canvassing the vote thereof, held in said town of Denver, or from asserting any right or authority whatever over the said town or any of its inhabitants, or the property of any of its inhabitants, or interfering with the proper exercise of the corporate franchises and privileges of said town, and of the official duties of its mayor and aldermen, and to obtain a decree declaring the election and proceedings concerning the extension of the boundaries of the city of Spokane Falls to be null and void. It is alleged generally in the complaint that the plaintiff, the town of Denver, now is, and at all times hereinafter mentioned has been, a municipal corporation, duly organized and existing under and by virtue of the laws of the state of Washington; and it is further specially alleged that on the 16th day of June, 1889, it was duly incorporated under and by virtue of the provisions of an act of the legislature of the then territory of Washington entitled "An act for the incorporation of towns and villages in the territory of Washington," approved February 2, 1888, and then and there became, ever since has remained, and now is, a municipal corporation duly organized and acting; and that on the 15th day of May, 1890, it reincorporated as a municipal corporation under and by virtue of a law of the state of Washington entitled "An act providing for the organization, classification, incorporation and government of municipal corporations, and declaring an emergency," approved March 27, 1890, in the manner prescribed in section 4 of said act, as a municipal corporation of the fourth class as therein provided. The learned counsel for the appellant strenuously insists that these allegations were not denied in the answer, and must therefore be deemed admitted. The point made is that the attempted denial is bad in form, and, if valid at all, amounts to a plea of the general issues only, and that such a plea admits the corporate existence of the plaintiff. The particular part of the answer thus objected to is as follows: "Now come the above-named defendants, and for their answer to the third amended and supplemental complaint of the plaintiff herein say that they deny each and every allegation, matter, and thing in said complaint contained, except those hereinafter admitted." It must be admitted that this form of pleading is objectionable, and not to be commended. It is just as easy for a defendant to deny positively any allegation of the complaint controverted by him, and thus conform strictly to the requirements of the Code, as it is to "say" he denies. "But such a form is nevertheless a denial, and, if not objected to at the proper time, will be sustained." Maxw. Code. Pl. 390. While the denial in this case is not so specific as it should have been, yet, inasmuch as the defendants were not required by motion in the court below to make it more specific, we do not think we ought now to declare it insufficient, especially as it appears from the answer as a whole just what allegations of the complaint are denied and what are admitted. See Boone, Code Pl. § 60, and cases cited; Maxw. Code Pl. p. 388.

But as before intimated, it is claimed by counsel for the plaintiff that, even if the said allegations of the answer constitute a denial in any sense, still they are not sufficient to require proof of the corporate existence of the town of Denver. Numerous authorities are cited to the proposition that by pleading the general issue the defendants admit the corporate existence of the plaintiff. Some of the decisions cited, however, were based upon special statutes, (see Association v. Read, 93 N.Y. 474; Bank v. Loyhed, 28 Minn. 396, 10 N.W. 421,) and others proceeded upon the theory that a plaintiff's capacity to sue is a preliminary question, which is waived by pleading to the merits. The doctrine contended for by appellant is recognized by Mr. Wait in his recent work on Insolvent Corporations as one of very general application, but he admits that it is not universal, and that the question is more or less affected by the provisions of the different Codes. Wait, Insolv. Corp. § 136. Our Code of Procedure (section 194, subd. 1) provides that the answer must contain a general or specific denial of each material...