I think the Justice's fees were waivable, and that before he withheld the demurrer from filing he ought to have demanded his fees, which he did not do, and that that was ground on an application therefor to have set aside the default and judgment. But when equity is invoked to annul the judgment on the ground of fraud, that is another matter. Because the justice erroneously or improperly withheld the demurrer from filing because his fees were not paid does not, in itself, justify a charge of fraud on the part of the justice or of the plaintiff, or his attorney. Were that true, then mere errors made by a justice would, in equity, be ground to annul judgments rendered by him. The complaint in this action proceeds on the theory of actual fraud and connivance between the justice and Forsythe's attorney in withholding and not filing the demurrer. Whatever speculation may be indulged as to that, I see no evidence in the record upon which to base any such a finding. Because the justice erroneously or improperly withheld the demurrer from filing did not divest him of jurisdiction to enter the default and judgment. That in effect is what is held by us in the case on certiorari. 38 Utah, 274, 112 Pac. 807. The point also is made that the complaint before the justice was not verified. Because of that I do not think the justice was without jurisdiction to proceed. The complaint admittedly states facts sufficient to constitute a cause of action. Another point is made that the justice entered the judgment without evidence. His record, in effect, recites that the judgment was entered upon evidence. It recites that: "From the evidence I find that the defendant is indebted to the plaintiff in the sum of $200.30." The district court, in this action, does not find that the justice's judgment was rendered or entered without evidence. What the court found is: "That there was not sufficient evidence offered or received by the said justice at the time of the entry of said judgment, or at any time prior thereto, in support of said complaint." It is not disclosed in this case what evidence was offered or received by the justice. Nor does the proof show that no evidence was offered or received, or that the justice's recital in such respect is false. The only proof as to that is the testimony of the justice, who testified that: "There were many judgments entered upon the same basis-nonpayment of fees-and this case made no more impression upon my mind than any other case. I do not remember whether there was any evidence taken in this case or not" -and the testimony of Luke who testified: "I do not remember anything about it now." These witnesses were called by the plaintiff, and by them it was expected to prove that the judgment was entered without evidence. I do not think that the testimony given by them is proof of such fact; at least not sufficient to overcome the recitals of the justice's record that the judgment was entered upon evidence. Merely to call witnesses, though they may be hostile, to prove a fact, and who but testify that they did not then remember anything about it, is far from proving the fact itself. But, further, equity may not be invoked to annul a judgment on the ground that it was rendered or entered on insuficient or no evidence. Hunter v. Hoole, 17 Cal. 418; Powell v. Stewart, 17 Ala. 719; Wright v. Eaton, 7 Wis. 597; Martin v. Pifer, 96 Ind. 245; Burke v. Wheat, 22 Kan. 722. This is so, as the remedy is by appeal, writ of error, or certiorari. It is also contended that there is no merit to the complaint filed before the justice for the reason that the evidence in this case, without dispute, shows that the claim sued on before the justice had been paid and was barred. Of course, in this action to annul the judgment entered by the justice, the plaintiff here, among other things, was required to show that he had a meritorious defense to the complaint filed before the justice. But the issue as to whether the plaintiff in the justice court ought to have prevailed on his complaint, or the defendant on his defenses of payment or bar of the statute, was not before the court for adjudication. Since such defenses were material. only to the inquiry of whether the plaintiff had any defense to the complaint in the justice's court, any offer of the defendants to prove that the claim had not been paid, and that the statute had not run, or was tolled, would have been impertinent, just as it would have been impertinent to have offered proof in support of the allegations of the complaint filed before the justice. What the plaintiff by this action contends is that he, in the justice's court, was prevented through fraud from interposing and making such defenses, and for that reason seeks to have the judgment annulled and set · aside in order that he may properly make and show them. But notwithstanding that, the district court in this action stated the conclusion "that the alleged claim upon which said action (in the justice's court) was founded has been duly paid and satisfied," and was barred. Thus, the defenses which the plaintiff showed he could interpose and make to the complaint in the justice's court, if the judgment be annulled and set aside, the court, in this action, adjudged in plaintiff's favor as though the court had before it and had tried such issues on merits. I, therefore, think the complaint made of that is well founded. But aside from these considerations I think the plaintiff must be denied relief in equity on the ground that he had a complete remedy by appeal, but wholly, through his own fault and neglect and without any fault or interference whatever on the part of the [Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 100-102; Dec. Dig. 40. For other definitions, see Words and Phrases, First and Second Series, Abandonment.] 3. APPEAL AND ERROR 1002—JUDGMENT— CONFLICTING EVIDENCE HOMESTEAD ABANDONMENT. What constitutes abandonment is a question of intent to be gathered from the facts, and, where there is a conflict in the testimony involving the question of abandonment, this court, under the well-established rule, will not disturb the judgment of the trial court on appeal. Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.1 [Ed. Note.-For other cases, see Appeal and 4. PUBLIC LANDS 35-RIGHT OF POSSESSION QUIETING TITLE-DEFENSE. defendants, or either of them, failed to avail [ sufficient proof to establish an "abandonment" himself of it. Let it be conceded that the of such homestead. plaintiff presumed that the case in the justice's court for more than three years was pending on demurrer, and that he had no knowledge that a judgment had been taken against him until the service of an execution in July, 1910. He then, within 30 days thereafter, had the right to prosecute an appeal from the justice's judgment to the district court. This he did not do until nearly two years thereafter, and after he had unsuccessfully pursued a wrong and unavailing remedy and had long lost his right to appeal. It is claimed that he did not then know that he had the right to appeal. But from the time of the mailing of his demurrer in February, 1907, to the presentation and submission of this cause, he, in all that he did, was represented by counsel. But it is said that they also did not know that then the right of an appeal existed, and for that reason unsuccessfully sought relief by certiorari, and when that was ended the right to appeal had long expiréd. 41 Utah, 16, 123 Pac. 621. It is familiar doctrine that equity will not relieve against a judgment at law where complete relief against the judgment could have been had by appeal, but which, through the neglect or fault of the aggrieved party, and without the fault of his adversary, was not taken. To invoke equity in such case because of the want of knowledge that the right of an appeal existed, or losing it by mistaking and pursuing an unavailing and inappropriate remedy, is to do violence to the familiar maxims, that "ignorance of the law excuses no one," and."that to be ignorant of the law is gross neglect," and to the principle that an election of remedies is final and conclusive. I, therefore, think the judgment should be reversed. (28 Idaho, 403) (Supreme Court of Idaho. Jan. 17, 1916.) Held, under the facts in this case, that the appellant, in seeking to defeat respondents' right land of the United States claimed as a hometo possession of an unsurveyed tract of public stead under sections 4552-4555, Rev. Codes, is not in position to raise the question of respondents' failure to apply to the local land office of the United States for entry of this land under the homestead laws after the same was surveyed by the government, since the right of respondents to have possession of the premises quieted against appellant accrued prior to the survey, and, more particularly, in the absence of any testimony showing higher evidence of right to possession or title acquired by appellant from a paramount source. Cent. Dig. §§ 72-77; Dec. Dig. 35.] Appeal from District Court, Shoshone Action by W. R. Goldensmith and another against the Snowstorm Mining Company, Limited. From judgment for plaintiffs, de fendant appeals. Affirmed. John P. Gray, of Cœur d'Alene, and Therrett Towles, of Wallace, for appellant. A G. Kerns, of Wallace, for respondents. BUDGE, J. This is an appeal from a decree of the district court of the First judicial district quieting title in respondents, except as to the paramount title of the United States, to the following described premises: Beginning at the northwest corner of the Snowstorm mill site Sur. No. 2066 B.; thence N. 78° 14′ W. 441.27 feet to the N. W. corner; Where it appears that a person has gone into possession of a tract of unsurveyed land of thence S. 4° 43′ W. 2,202.50 feet to the S. the United States and has fully complied with W. corner; thence S. 78° 14′ E. 441.27 feet sections 4552-4555, Rev. Codes, providing for to the S. E. corner; thence N. 4° 43′ E. the settlement upon, and occupancy of, the pub- 1,893.54 feet; thence N. 84° 42′ W. 10.24 feet; lic domain of the United States in this state, such possession and compliance with the law thence N. 6° 20′ E. 363 feet to the place of being shown, abandonment thereof must be made beginning-containing 22.28 acres, more or to appear clearly and conclusively by the party less. relying on it to defeat the right of the claimant to have his possession in the land quieted. [Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 103-105; Dec. Dig. 41.] 2. PUBLIC LANDS 40-HOMESTEAD—“ABAN DONMENT"-TEMPORARY ABSENCE. Held, that the temporary absence of a person from a homestead selected in the manner provided by sections 4552-4555, Rev. Codes, supra, in order to obtain a livelihood or for any other legitimate reason, would not of itself be Respondents commenced this action by filing a complaint against appellant in the above-named court on May 28, 1909, claiming that they were the owners, except as to the paramount title of the United States, of the premises described in the complaint, and entitled to the possession thereof, and asking that their title therein be quieted. To this complaint appellant filed its answer and cross complaint, denying specifically the allegations, respondents' complaint were occupied as a of the complaint, and setting up in its cross- homestead by W. A. Bowers and wife, who complaint the ownership and possession of had resided thereon for a number of years; the Sunlight mill site, covering the same that respondent Maude E. Goldensmith purground described in respondents' complaint. chased from Bowers and wife the improveThereafter, by permission of the court, ap- ments located on these premises, and during pellant filed a supplemental answer in which February, 1908, moved into the home formerit set forth, among other things, that re- ly occupied by Bowers and wife, and resided spondents were not then, and had not been thereon continuously, cultivating a small part for more than five years last past, in the of the premises, up to and including Decempossession of said premises, and that they ber, 1910; that after the latter date she temhad abandoned and ceased to occupy, cul- porarily left the premises to seek employ. tivate, and improve the same, and had not ment, and remained away for approximate. lived upon, occupied, improved, or cultivat- ly 13 months, or until about January, 1911, ed the same during said period of time, and when she again returned to the home, and further set forth that the approved plat of lived there for a period of 7 months; that government survey of the lands embracing when she first established her residence upon said premises was filed in the land office on the premises, she moved into the home all June 28, 1911, and that respondents nor of the furniture owned by her, and the same either of them had filed his or her declara- has never been removed from 'the place; that tory statement to make entry of said prem- this is the only home she has; that her abises in the land office within the time provid- scnce was due entirely to the fact that it was ed by law. Upon the issues thus framed a necessary for her to seek employment in ortrial was had, resulting in judgment for re- der to obtain a livelihood; that during her spondents quieting title in them to the prem- absence, and at various times, she had im. ises described in the complaint. provements made upon the home, repairing the fence surrounding the same, and there is testimony to the effect that she left in charge of said premises an agent who looked after the same; that she was separated from her husband, and was wholly dependent upon her own labor for a living; that her boy, 12 years of age, was in school in Osburn, where she also lived a portion of the time. W. R. Goldensmith, former husband of respondent Maude E. Goldensmith, did not appear on the trial of this cause. However, the record discloses that Maude E. Goldensmith is the real party in interest. Appellant relies for reversal of this cause upon six assignments of error, which go to the admission of certain evidence by the trial court over the objection of appellant, the action of the trial court in denying appellant's motions for nonsuit, both at the close of respondents' case and when renewed at the close of all of the testimony, the entering of a decree in favor of respondents, for the reason that the same was contrary to the evidence and to law, and the insufficiency of the evidence to sustain the decree. The action of the court in admitting the testimony offered by respondents during the trial of the cause and complained of by appellant, being immaterial and not prejudicial to any substantial rights of appellant, did not constitute reversible error. Bradbury v. Idaho, etc., L. I. Co., 2 Idaho, 239, 10 Pac. 620; Works Bros. v. Kinney, 8 Idaho, 771, 71 Pac. 477; McKinnon v. McIlhargey, 24 Idaho, 720, 135 Pac. 826. The remaining five assignments of error will be discussed and considered together. From the record it appears that appellant applied for a patent for a mill site embracing the land claimed as a homestead by respondents. To this application respondents filed a protest in the United States Land Office, and proceedings were thereupon had, which terminated on November 16, 1914, in the rejection and cancellation of the mill site application by the honorable Secretary of the Interior. The proof upon the trial shows that on January 30, 1908, the premises described in [1, 2] On May 10, 1909, respondent Maude E. Goldensmith made and swore to a notice of possessory claim under the provisions of sections 4552-4555, Rev. Codes, and this notice was duly recorded with the county re corder of Shoshone county on May 14, 1909. There is a substantial conflict in the testimony touching the value of the improvements placed upon the premises described in the notice of possessory claim, but we think the evidence fully supports the contention of respondents that the improvements placed upon the premises by their predecessors in interest and those subsequently made thereon by respondents, were sufficient to comply with the provisions of sections 4552-4555, supra. Counsel for appellant insist that the absence of respondents from the premises and the testimony upon the trial conclusively show an abandonment of the premises by them. With this contention, however, we are not in accord. The temporary absence of a person from a homestead selected in the manner provided by sections 4552-4555, Rev. Codes, in order to obtain a livelihood, or for any other legitimate reason, would not of itself be sufficient proof to establish abandonment of such homestead. Abandonment has been defined by the weight of authority to mean the voluntary relinquishment of possession of the premises by the owner with the intention of terminating the ownership, without vesting it in any other person. And, in order that a claim of abandonment may be predicated on the acts of the owner of property in relinquishing his possession of the same, it is necessary that such acts should be absolute and unconditional, and also that they should have been done voluntarily; that is, without coercion or pressure of any kind. In order to justify the conclusion that there has been abandonment of a homestead acquired under the provisions of said sections, there must be some clear, unmistakable, affirmative act or series of acts indicating a purpose to repudiate ownership and right to possession. The abandonment of rights in land does not occur if the person in possession leaves it with the intention of returning. The owner of property, by leaving an agent in charge after he ceases to occupy the premises in person, conclusively rebuts any presumption of abandonment arising from the fact that he ceases to occupy or reside thereon. Where it appears that a person has gone into possession of a tract of unsurveyed government land and has fully complied with sections 4552-4555, supra, providing for the settlement upon, and occupancy of, the public domain of the United States in this state, such possession and compliance with the law being shown, abandonment thereof must be made to appear clearly and conclusively by the party relying on it to defeat the right of the claimant to have his possession in the land quieted. Richardson v. McNulty, 24 Cal. 339; Moon v. Rollins, 36 Cal. 333, 95 Am. Dec. 181; Utt v. Frey, 106 Cal. 392, 39 Pac. 807. It is apparent from the record in this case all the way through that respondent Maude E. Goldensmith never intended to abandon the premises, but, on the contrary, intended to return, and that her absence was due sole ly to the fact that she was dependent upon her own labor for her support and the maintenance of her son. It further appears that she visited the property upon numerous occasions; that she protected it by having the doors properly secured, the windows boarded up, the fence repaired; that such household effects as she owned and other property were left in the building; and that she exercised during her temporary absence rights of ownership and control over the premises. From her explanation of her temporary absence her good faith and intention of returning are obvious. [3] What constitutes abandonment is a question of intent to be gathered from the facts; and, where there is a substantial conflict in the testimony involving the question of abandonment, this court, under the wellestablished rule, will not disturb the judgment of the trial court on appeal. Counsel for appellant insist that their motion for nonsuit should have been sustained, and that the evidence was not sufficient to support the findings of fact or the decree based thereon. It is a well-settled rule that a motion for nonsuit admits the truth of plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom, and the evidence must be interpreted most strongly against defendant. Pilmer v. | Boise Traction Co., 14 Idaho, 327, 94 Pac. 432, 15 L. R. A. (N. S.) 254, 125 Am. St. Rep. 161; Colvin & Rinard v. Lyons, 15 Idaho, 180, 96 Pac. 572; McDaniel v. Moore, 19 Idaho, 43, 112 Pac. 317. In view of this rule, and in the absence of any evidence offered on behalf of the appellant, we are of the opinion that the evidence was amply sufficient to warrant the court in making its findings in favor of respondent, and that the evidence was not insufficient to support the decree. [4] We come now to the last contention of counsel for appellant, viz., the failure of respondents to apply to the land office to enter the premises described in their complaint under the homestead laws of the United States after this land was surveyed by the government, and the plat filed, on June 28, 1911. We do not think that appellant, in order to defeat respondents' right to possession, is in a position to raise this question, since the right of respondents to have the possession of said premises quieted against appellant accrued prior to the date of the survey of said land by the government, and, more particularly, in the absence of any testimony showing a higher evidence of right to possession or title acquired by appellant from a paramount source. The question involved between appellant and respondents here is one of right of possession to the public domain of the United States prior to survey thereof, and, even though respondents, as between them and the government, may be trespassers, appellant may not raise that question in this proceeding to establish his right of possession. From our examination of the record we find no error in the action of the trial court and we are satisfied that the evidence offered in denying appellant's motion for a nonsuit, and admitted is sufficient to sustain the de cree, and that the decree was not contrary to law. and costs awarded to respondents. The judgment of the trial court is affirmed, SULLIVAN, C. J., and MORGAN, J., con answer. this does not appear on the face of the com- The cause was tried before the court and plaint, the plea of the statute must be taken by a jury, resulting in a verdict for the sum of $2,170 in favor of plaintiff. Judgment was thereupon entered, from which judgment this appeal is prosecuted. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 670-682, 695, 705; Dec. Dig. 180, 182.] 2. LIMITATION OF ACTIONS 182-DEFENSE -ABANDONMENT. Appellant assigns eight specifications of error, yet in his brief discusses and relies on but seven. the action of the trial court in overruling apThe first error complained of is pellant's demurrer. For causes of demurrer appellant alleged: (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) that the cause of action was barred by the provisions of section 4053, Rev. Codes (which is the section of the stat928-PRESENTATION utes which limits the commencement of acREVIEW-INSTRUCTIONS-PRESUMPTION. tions on contracts, obligations, or liabilities, Where the statute of limitations is sought to be invoked as a defense, if it cannot be urged by special demurrer, and is not pleaded in the answer, it must, for the purpose of the action, be regarded as abandoned, and cannot be taken advantage of on objection to the admissibility of evidence. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 676-680, 682, 695, 705; Dec. Dig. 182.] 3. APPEAL AND ERROR FOR Where the transcript on appeal fails to contain instructions as given by the trial court, it will be presumed that the jury were correctly instructed upon all of the material issues involved as presented by the pleadings, and the judgment of the court will not be disturbed. [Ed. Note.-For other cases, see Appeal and Appeal from District Court, Shoshone A. G. Kerns, of Wallace, for appellant. BUDGE, J. On July 18, 1914, plaintiff filed her complaint in the district court of the First judicial district against defendant, alleging that between December 31, 1901, and November 1, 1913, plaintiff at the special instance and request of defendant furnished to defendant, at plaintiff's residence in the city of Wallace, board and lodging; that such board and lodging so furnished during said period of time was of the reasonable value of $6,160, and that there was an implied contract on the part of defendant to pay the same; that defendant had not paid any part of said sum, but that he had rented a dwelling house to plaintiff from November 1, 1913, to July 31, 1914, at the agreed rental value of $25 per month; and that on this account defendant was entitled to offset the sum of $225. To the complaint defendant filed a demurrer, which was overruled. Thereafter defendant answered plaintiff's complaint, denying all the material allegations thereof, and alleging affirmatively that he had paid plaintiff various sums of money, which payments were in full settlement of the claim sued upon; and as a counterclaim he set up that defendant had rented to plaintiff the dwelling house mentioned in her complaint, and that she had occupied the same 21 months, paying no rent therefor, and was indebted to defendant on account of said rent in the sum of $525. not founded upon instruments of writing, to four years); and (3) that the complaint was ambiguous in alleging a conclusive statement that said alleged contract was implied. [1] In our opinion the complaint states facts sufficient to constitute a cause of action, and it is not subject to the objection of ambiguity in alleging that the action is upon an implied contract. For the reason that upon its face this complaint states a cause of action it is not subject to subdivision 2 of appellant's demurrer, namely, that the cause of action is barred by the provisions of section 4053, Rev. Codes. This court held in the case of Chemung Mining Co. v. Hanley, 9 Idaho, 786, 77 Pac. 226, that if it clearly appears on the face of the complaint that the cause of action did not accrue within the statutory time, the plea of the statute of limitations should be taken by special demurrer. Where, however, it does not appear on the face of the complaint that the cause of action is barred by the statute of limitations, then the plea of this statute should be taken by answer. Notwithstanding the complaint states a cause of action as to all items of indebtedness contracted within a period of four years prior to July 18, 1914, the date on which this action was commenced, appellant sought by demurrer to plead the statute of limitations to the entire complaint, and not to any particular portion of it. This court in numerous cases has held that the plea of the statute of limitations is a personal one; that it is a privilege which the law gives to the debtor, which he may waive or insist upon. The statute acts upon the remedy, and not upon the debt. The running of the statute does not extinguish the debt, and to be available it must be pleaded directly, and cannot be interposed by argument or inference. ton v. Williams, 6 Idaho, 424, 55 Pac. 1019; Sterrett v. Sweeney, 15 Idaho, 416, 98 Pac. 418, 20 L. R. A. (N. S.) 963, 128 Am. St. Rep. 68; Kelly v. Leachman, 3 Idaho, 629, 33 Pac. 44; Bixby v. Crafts, 53 Pac. 404; 1 Moul For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |