Steinour v. Oakley State Bank

RICE, J.

In this case the defendant below, respondent here, interposed a motion to strike portions of the amended complaint of appellants, and also a general and special demurrer thereto. The court considered the motion and the demurrers at the same time, and filed an order to the effect that “the demurrer and the motion to strike filed by the defendant to the amended complaint of the plaintiffs be, and the same are, hereby sustained.....” It would be an act of supererogation on the part of the court to strike portions of a complaint to which a general demurrer had been sustained. We must conclude that -the effect of this order was to strike from the amended complaint the portions thereof indicated in the order, and that the demurrer interposed was sustained as to the remainder.

The record fails to show an exception taken by tjhe plaintiffs to the order of the court striking out portions of their complaint. Rev. Codes, sec. 4427, was amended by Sess. Laws 1911, chap. 229, 'p. 781. By the terms of this section, prior to amendment, “an order .... striking out a pleading or a portion thereof” was deemed to have been excepted to. The section as it now stands does not preserve an exception to an order striking a pleading or a portion thereof. We must conclude that the legislature purposely omitted the provision saving an exception to an order striking a pleading or a portion thereof, and in the absence of an exception in the record, the action of the court is not subject to review on appeal.

Upon a consideration of the portion of the amended complaint not stricken, wk find that it was not subject to a genera] demurrer.' At the least it states a cause of action to quiet title under the statute. If a cause of action is stated by a complaint, a general demurrer thereto should be overruled. (Village of Sandpoint v. Doyle, 11 Ida. 642, 83 Pac. 598, 4 L. R. A., N. S., 810; Bonham Nat. Bank v. Grimes Pass Placer Min. Co., 18 Ida. 629, 111 Pac. 1078.)

The special demurrer to the effect that several causes of action had been improperly united in the amended complaint was withdrawn by the respondent. The court, however, sustained a demurrer on the ground that the cause of action was barred by Rev. Codes, sec. 4054, subd. 4, which provides for the running of the statute within three years in an action for relief upon the ground of fraud or mistake. The allegations of fraud in the amended complaint, to which this demurrer was interposed, were stricken by the court. The portion of the amended complaint remaining was not subject to demurrer upon that ground.

(January 28, 1919.)

The judgment of the court dismissing the action is reversed. Costs awarded to appellants.

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