ON PETITION EOR REHEARING, •
Potter, Justice.This ease was originally submitted upon briefs, and the decision of.this- court, was.,rendered reversing the judgment of the district court, and remanding the cáse for trial. , A motion for rehearing having been filed,-, in -view pf. the-somewhat -important questions of -.practice to he determined, .an oral argument was requested by the court. . The. points involved have been ably presented by counsel,- and -we have again .given them careful thought .and consideration., •
The facts are stated in extenso.,in the former opinion of Groesbeck, C. J. :' It will, therefore, be sufficient.at this-time to advert very briefly to the matter in controversy..
Defendant in error applied ■ at the TJnitéd States Land' Office for a' patent to a certain -placer mining claim; the plaintiff in error filed an adverse claim,' and within the. period required by the statutes of the United States commenced -.this *368suit in the district court, to determine the question of the right to possession. (U. S. Kev. Stat., sec. 2326.) All the material ayerments requisite in such a case were contained in his petition, including an allegation of citizenship, ownership of the ground in controversy, and right to its possession, a full compliance with the laws of the United States and this State, and the rules and regulations of the mining district, the application of defendant for patent, and the filing of the adverse claim. It was also averred that defendant was in wrongful possession of the land. The defendant filed its answer specifically denying the material allegations of the petition, except its own corporate" existence; -and for a second defense and cross petition alleging ownership and right to possession in i’tself, as well as its actual possession, a full compliance on its part with the laws and rules in relation to mining lands, and ending' with a prayer that its title to said real estate be quieted as against the plaintiff. No reply was filed to this second defense, and on motion of the defendant, which was resisted by plaintiff, the court rendered judgment upon the pleadings, assuming the allegations of the second defense to be admitted in default of a reply, and entered a judgment in favor of defendant, specifically finding as true the material facts alleged in said defense.
' Did the court err in thus rendering judgment upon the pleadings? It may be asserted as a primary proposition, and we take it to be conceded, that unless a reply was necessary there existed no authority for such a judgment.
- If this suit was an ordinary one to recover possession of real estate, the plaintiff alleging ownership and right to possession, and the defendant not only denying the claims of plaintiff, but averring ownership in himself, it is clear that ho reply would have been required. In such a case these allegations of the answer would amount merely to a denial of the claim set up by the plaintiff. Such ownership could have been shown under a general denial. This is sufficiently demonstrated in the former opinion. It is, however, urged with much earnestness that a different rule prevails in a controversy of this character, by reason of the peculiar pro*369visions and requirements of the United States statute. The amendment to section 2326, U. S. Key. Stat., enacted in 1881, provides that, if title to the ground in controversy shall ' not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict, and it is now settled that upon the trial .the court or jury must find, and the judgment must show which party if either is entitled to the property; and if is found that neither of the parties has shown a right thereto, that must be found and the judgment must so state.
In view of this, it is insisted that the allegations of the second defense in the answer constitute new matter which must be replied to or they will stand admitted; and that it is absolutely essential to protect its own rights, and authorize a finding and judgment in its favor establishing its title to the ground, that an affirmative pleading of this kind should be. filed by the defendant. That, if the defendant is required to plead his own title, it thereby perforce becomes new matter; that defendant c-annot rely upon the weakness of the plaintiff’s title, but can obtain the relief demanded in such a case as this only by showing his own title, notwithstanding that the plaintiff fails to make such a showing as to authorize a judgment in his favor. This, we believe, is a fair, outline of the contention of counsel for defendant in error. It is not urged, as we understand' it, that a reply is demanded to anything which is not new matter, but that the answer contains new matter.
The law of congress, in pursuance of which this and kindred actions are brought, confers no additional jurisdiction upon State courts. “The object of the law” .... “was to require parties protesting against the issuance of a patent to go into the State courts of competent jurisdiction and institute such proceedings as they might, under the different forms of action, therein allowed, elect, and there try The rights of possession’ to such claim and have the question determined. The acts of congress do not attempt to confer any jurisdiction, not already possessed by the State courts; nor to prescribe a different form of action.” The 420 Mining Co. v. *370The Bullion Mining Co., 9 Nev., 240-248. We have quoted from the Nevada ease. That court, in the casé cited, then proceeds to illustrate the application of .that view, and' states that if the parties protesting are in possession they can bring their action under a'certain section of their.civil practice act therein referred to, or if they have been ousted from the possession they .can-bring their action: of ejectment;- -and that in either action the right of possession can be finally settled and determined. The opinion in that case then proceeds to say: “We are of opinion that when the aetion is brought* whatever may be its character, it must be tried by‘the same rules, governed by -the same principles, and controlled by the same statutes that apply to. -such actions in our State courts, irre-. speetive of-the acts of congress.” This exposition of the character. of this class of. cases when brought dn a State court com forms- to our- views; we believe it is not opposed elsewhere, but thait the principles thus enunciated are well established.
When such a suit is commenced rightfully in a State court, the riiles of pleading and practice governing the action.-whieh is selected by the'complaining party, and the remedy, thereby sought applies‘to."the same extent and with the same force: as.to..such an action generally,-unless a different -.statutory, rule is provided, except,-perhaps, in the; nature ofrthe-judg-ment to be rendered. - Our Code of Civil Procedure-provides, generally-'that the-answer shall-contain: . “First, a general or specific denial-, of- each' material allegation::of the petition controverted by the defendant; second, a statement of any new matter- constituting- a 'defense, 'counter-claim .or • set-off, -in ordinary and concise language:”-- KevrSta/t., Sec. 2457. With-.special reference to actions for the' recovery of real property,; it provides:' “It shall be‘sufficient-in such action, if the-defendant in his answer-deny generally the title alleged-in the-petition, or that he withholds the-possession;-.but if he deny the title of the plaintiff, possession by the defendant shall .be taken, as admitted;”' Sec. 2988..- The statutory provisions in-relation-to a reply, so far as this cáse is concerned,- are found-in sections 2466 and 2468; Sec. 2466-is as follows-: '-.“When the answer- contains hew matter; ;the plaintiff may reply to *371such new matter denying generally or .specifically each allegation controverted by him; and he may also allege, in ordinary and concise language,, any new matter nq-t inconsistent with the.petition, constituting an answer to such new matter in the answer/’ Section 246.8 provides:- “Every material allegation of the petition' not controverted .by ■ the answer, and every material allegation of new matter in .the answer not- control verted.by the reply-, shall, for. the purposes of. the- action, be taken as true.” In.section 2469 we are furnished -with..a statutory definition of-a material allegation. “A material allegation in a pleading is one essential to the claim or def ense which could not be stricken from the pleading, without leaving it insufficient.”' .
The whole ‘question, then, is. whether or not that part o.f the answer, which is claimed should have'been replied to;-amounts to “a material allegation of-new matter.”
Pomeroy .defines :the new matter of the codes as that which “admits that all -the -material.allegations.of- the complaint or petition are true,; and .consists of facts :not alleged therein which destroy the-right of action, and defeat a recovery,”.and adds that all.-facts which- directly tend to disprove any one of more -of the averments of the petition- may be offered under ■the general-denial. - Pomeroy’s Remedies & Remedial Rights, Sec. 673. ' The above definition is, perhaps, -as accurate as one can be--framed in brief language. ■ See Mauldin -v.- Bull, -5 Moni; 96., it does not mean that the allegations of the-'petition are expressly admitted, but the idea is that for the- purposes-of thenéw matter-.or the defense alleging.it, there is an implied admission.--: Tested-by this rule, the allegations of the second defense in .the answer before us-do not-amount to new matter^ for the. clear-reason theft they not only-tend to disprove the allegations-of. thei petition, and all of-them-may be shown undena-general denial, and. are in legal.-effeet nothing more than denial of the'fac.ts.„al!eged in the petition; but they do not admit any of the" allegations of- the-petition to be true, and seek, ..otherwise,-..to-destroy. their effect and value. Is it true that the defendant, in such-.a’ ease as the one- before us,- in this State-under: our code of-.procedure,-must embrace-in his-*372answer such affirmative allegations as are nnder discussion? Counsel insist that it is, because he desires, if successful, a finding and judgment that he is the owner. Wherein is the difficulty in praying for such relief, or some proper relief in connection with a mere general denial, and in securing just the finding and judgment desired, if the facts proven establish a right thereto,-under a mere denial. He is at liberty under such a’pleading to prove those facts, and having proven them, if he does, and having rightfully proven them, for what reason is the court powerless, if it is, to so find and adjudge accordingly? We do not perceive any reason, and are confident that such is not the law.
Counsel point to Morrison’s Mining Eights, which- is, indeed, valuable authority, and inform us that their pleading follows the forms therein laid down and -approved. In that wort, the form for -the answer in such cases -contains no prayer of any description for relief, neither is that part of the answer embodying the affirmative averments denominated cross-peti-tion. (Eighth Ed., 376.) But it is apparent that the learned author referred to makes special reference to the Colorado practice and decisions. He states that a reply must be filed to such a second defense, and -cites two cases, Newman v. Newton, 14 Fed., 634, and Quinby v. Boyd, 8 Colo., 194; and counsel here also cite those cases as being directly in point, and insist that Judge Hallett, in Newman v. Newton, decided the identical question. It was stated in the former opinion by the Chief Justice that the decision in that case was based upon the peculiar provisions of the Colorado statute, respecting the contents of an answer in actions to recover real property, and we adhere to that view. It is, moreover, entirely apparent that neither in that case, nor in the Quinby v. Boyd, was the question now in controversy, as applied to this kind of case, decided, or the subject of judicial investigation. They were each cases for the recovery of the possession of mining property, and did not involve in any particular the determination of adverse claims pending application for a patent. The decisions must, therefore, have been based entirely upon the Colorado statute. Construing the statute of that State, *373which is not similar to our‘own, they are not precedents upon the points involved in the case at bar. Beyond that, however, the fact that they are cited by the learned author above, referred to, as authority sustaining the proposition of the text to the effect that a reply is necessary to such a defense, indirectly sustains us in the view that the statute of the State respecting pleadings governs in this class of cases.
The law of procedure in this State in relation to actions for. the recovery of specific personal property, popularly called re-plevin suits, bears a striking analogy to this class of real actions in .connection with the acts of congress concerning them. Bearing in mind the requirement of the congressional enactments respecting the verdict and judgment, we will advert briefly- to the analogous features of the replevin action under the code of our own and other States. In the first place, it is well settled that under a general denial in a replevin suit under'the codes, the defendant may prove anything which shall disprove the allegations of the petition, including title or ownership in himself. Section 3038 of the Bevised Statutes provides that in a replevin action when the property is delivered to the plaintiff, or remains in the hands of the sheriff, if the jury, upon issue joined, find for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess to him such damages as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant against the plaintiff and his sureties.
Under a similar statute in several States, the question arose whether a judgment could thus go for a defendant, first, if he had not included a prayer therefor in his answer, and, second, if he had not interposed an affirmative defense alleging his own right to the property; and so far as we have been able to ascertain, it has been the universal holding under the codes that such a judgment could be rendered in his favor under a general denial, and even without prayer therefor, unless, indeed, the statute expressly required him to embrace such a prayer in his answer. •
*374In Pico v. Pico, 56 Cal., this question arose.- In an earlier cáse irt that State 'it was held that a- defendant could not recover an''affirmative judgment unless he had .claimed.such in his'-answer, b¡ut as- appears by a reference to the code of that State in Pico v. Pico, it was so held, because the statute expressly-required such a.claim to.be so made. In the Pico case the original-answer was a general denial only. The judgment being in -favor of defendant 'fora large amount of damages, on.the same day-of the judgment he filed.an amended answer, simply claiming the return of the property, and alleging its value. - It was contended that he could not have judgment, as he had. not alleged ownership in himself. The court denied that proposition and said: “Under our system, the -general denial contests the right' of plaintiff, and under it may be-shown the right of defendant-or a third person.. The denial of plaintiff’s right to the possession- necessarily includes an assertion of right in defendant, from whom the possession of the property has been taken under the. writ; and- would authorize a-judgment for the return, -wére it not for, the provision of-the code which requires areturn'to be claimed' in the answer.”
In" Kansas, an-answer contained a-general denial, and a justification as sheriff'and-alleging property in-an attachment defendant.- The court held not only -that no reply was necessary, but with reference to affirmative relief, said:. “All that we now desire' to say-is, that-a defendant, in replevin may append-a prayer for affirmative relief-to an answer which contains only a general .denial, as well -as to any other-answer.; and, ■if he does so, he may then'have,-upon a verdict inhis favor, not only for costs,-but also a judgment for the proper affirmative relief.” Wilson v. Fuller, 9 Kans., 176, 192. To the.same effect, although there.' is no' prayer .for affirmative relief—School Dist. v. Shoemaker, 5 Neb., 36; Creighton v. Newton, 5 Neb., 100.
In School Dist. v. Shoemaker, after quoting,their statute ■as to judgment for defendant, which is -identical with our see. 3033, the court say:'' “Under- the statute both-these questions (right of property and of possession--by defendant) are in issue *375and are subjects of inquiry by the jury, whether the defendant pleads a general denial, or new matter as a defense, or a demand for damages.” See also Terrell v. Humphrey, 12 Ohio, 113; Jenkins v. Mitchell, 40 Neb., 664, 666; Young v. Glascock, 79 Mo., 574. Had our statute contained 'a similar requirement in real actions as the act of congress, commanding the finding whether the defendant had any right, as well as the plaintiff, the analogy between the cases above discussed and the class of cases to which the one at har belongs, would be apparent. The principle involved in the matter in controversy in either case is the same, viz.: the authority to adjudicate upon the right of defendant to the property or its possession, ,his pleading being a general or specific denial of the allegations of the petition, and to render in his favor a judg-j nient for that to which he is shown to be entitled under the evidence, within the general scope of the action. The fact that congress regulates the character of the finding and judgment, and the legislature of the State has prescribed the remedy, the form of action, character and necessity' of pleading, cannot alter the situation nor destroy the analogy, so far as the principle involved is concerned. . Enforcing the provisions of the act of congress, they are adopted for the time being by our courts with the same force and no more, as if they were a part and parcel, of .our own statute. It follows that the defendant could have offered his evidence of ownership and established whatever rights he had under the general or specific denials, and therefore the affirmative part of its answer is not new matter requiring reply, and that if the defendant •should establish his ownership to the satisfaction of court or .jury, he would be entitled to such a finding and judgment, even under a general denial.
What we have already said will necessarily dispose of the ease; it is not necessary, therefore, to consider the question whether judgment on the pleadings was pr'oper if a reply had been required to the answer, but it may be said that the authorities cited by counsel for defendant, as well as others bearing upon the matter, hold clearly, it seems to us, that in this class of .cases there is one thing which distinguishes *376it from others employing thé same form of action. The government has an interest in the result; and the.conrt is not at liberty to -find every material fact npon which a patent would be authorized or demanded, or which shows a right to possession without proof of any of those facts. The case of Rosenthal v. Ives, 2 Idaho, 244, so holds, as appears from a construction of the opinion in that case in a later Idaho case—Burke v. McDonald, 2 Idaho, 646. In the latter case it is held that it is not necessary where it is admitted by the pleadings to prove the filing of the adverse claim in the land office, as that is a mere matter of practice, but such a fact, as that of citizenship, must be proven for the reason that it constitutes an absolute qualification to the holding of mineral land. What particular facts must be proven, although admitted by the pleadings, and those not required to be proven, we do not now decide, it being unnecessary to do so; but we incline to the view expressed in Idaho, that there are some matters of mere practice which, if admitted by the pleadings, need not be proven by evidence.
We are fully advised of the points urged in this ease, and as a rehearing can serve no useful purpose, the motion for rehearing is denied, and the case will be remanded for trial as heretofore ordered. Rehearing denied.
G-ROesbecK, C. J., and Conaway, J., concur.