Hyde v. Stockwell

RICHARDS, J.

This is an action to quiet title to certain real estate. The complaint alleges the plaintiff to have been at all the times mentioned therein the owner of the property, and avers that defendants assert some claim or interest therein adverse to the plaintiff, but that they and each of them have no estate, right, title, or interest therein or in any part thereof. The plaintiff then proceeds to allege that the defendant Ida B. Stockwell has caused the defendant Charles R. Thomas, who is alleged to be a constable, to levy an attachment upon said property and thereby to cloud plaintiff’s title thereto; wherefore the plaintiff prays that the defendants be required to set forth their claims to said property, and that they be decreed to be without merit. The defendant Ida B. Stockwell, after several abortive efforts to present a pleading which would stand the assaults of the plaintiff by demurrers and motions to strike out, finally succeeded in doing so in the form of her fourth amended answer. The plaintiff demurred to said answer upon the general ground and also upon numerous specified grounds of uncertainty, and also moved to strike out specific paragraphs in said answer upon the grounds of surplusage, sham, redundant, and irrelevant matter. The court overruled said demurrer and denied said motion to strike out, whereupon the cause proceeded to trial, as a result of which the court made its findings and rendered its judgment in favor of said Ida B. Stockwell, sustaining in the main the affirmative averments of her answer, holding the attachment lien imposed by said defendant upon said property to be superior to the plaintiff’s claim of title in fee simple thereto.

The main contentions of the plaintiff upon this appeal are that the court erred in overruling her demurrer to the defendant’s fourth amended answer, and in denying her motion to strike out specific portions thereof. The appel

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lant also contends that the findings of the court in said defendant’s favor are not supported by the evidence in the case.

When the answer of the defendant is examined with a view to determining the merit of the first of these contentions it is found to be very in artificially drawn, but on the whole we think that it is sufficient to stand the test of a general demurrer, and also to have enough affirmative matter therein to be able to pass safely through the rather technical criticisms which the plaintiff urged against it in her special demurrer. To the appellant’s objection that said defendant has not separately stated her several defenses we find that no objection was made upon this ground in either the demurrer or the motion of the plaintiff; and as to her contention that the said defendant has not embodied the affirmative allegations of her answer in a cross-complaint we are of the opinion that the case of