The objection that a party is not the real party in interest
must be raised by demurrer or answer, and facts must be stated
if by answer.
1. Court may decree, or may sell.
In a suit for partition of a mining claim the court may decree
partition by metes and bounds, or, if partition by metes and
bounds cannot be made without great prejudice to the owners,
the claim may be sold, and the proceeds divided.
From the evidence it appeared that plaintiffs owned one-quar-
ter and defendants three-quarters of the claims which they asked
the court to partition; that the claims were worth $800,000, and
that the paystreak ran through the center of the claims, and was
of approximately equal value through its whole length; that
if sold it would bring but one-fourth of its actual value, entail-
ing a loss of $600,000; and that it must then be sold on partial
payments. Held, that it was more equitable to divide it by metės
and bounds, and so ordered.
Claims against estate, see "Executors and Administrators."
Oral contract between, to locate mine, see "Mines and Minerals."
1. Contract of partnership.
In determining whether the relation between the parties to an
oral agreement constitutes a partnership, their intention, as dis-
closed by the nature and effect of the whole agreement and acts
done thereunder, must govern.
-Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 263.
When two or more persons join in a mercantile venture upon
an agreement to share the profits and losses thereof upon a fixed
basis, they are partners.
-Miners' Co-operative Ass'n v. Steamer Monarch....383
An agreement between two or more persons to carry on busi-
ness together, and to divide the profits or losses of the joint
venture, constitutes a partnership.
Where real estate is held by a mercantile firm as an aid to its
mercantile business, and the title stands of record in the names
of the partnership and the partners severally as tenants in com-
mon, and no necessity is shown for one partner selling it to pay
present debts, after first exhausting the partnership personal
property in such payment, one partner cannot sell and convey
another partner's interest by deed or otherwise, unless authorized
to do so in writing, as required by the Code.
Judgment obtained by, see “Judgment.”
Answer in ejectment, see "Adverse Possession."
General appearance to indictment, see "Appearance."
Sufficiency in divorce cases, see "Divorce."
Sufficiency in ejectment, see "Ejectment."
Sufficiency in eminent domain, see "Eminent Domain."
Sufficiency in mechanics' liens, see "Mechanics' Liens."
Motion must specify points, see "Motions."
New trial denied when pleading insufficient, see "New Trial."
Mere errors in, not ground for new trial, see "New Trial."
Complaint showing usurious interest, see "Usury."
1. Sufficiency of pleading.
Where a complaint states the substantial facts which constitute
a cause of action, or they can be inferred by reasonable intend-
ment from the matters set forth, it will be held sufficient, in the
absence of a motion to make it more definite and certain, not-
withstanding imperfections of form or the omission of specific
allegations.
-Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 263.
An answer pleading title through an execution sale, which
contains averments of the judgment, execution sale thereon, con-
firmation, and the execution and recording of the marshal's
deed to the property, is sufficient, against a demurrer or mo-
tion to make more definite and certain, without setting out in
detail the proceedings relative to the execution and sale, any
irregularity in which was cured by the confirmation.
-Heid v. Ebner, 133 Fed. 156, 66 C. C. A. 222.
In an action to recover an interest in a mining claim conveyed
to plaintiff's prior grantor as a part of a settlement between
him and K., acting for a corporation, defendants claimed that
such interest was conveyed to plaintiff's grantor by mutual mis-
take, and K., who was a party, answered, and alleged that a
settlement was made between the corporation and plaintiff's
grantor, and was intended only to affect property in which those
parties were interested, and not the interest in question, which
belonged to K. individually, and that K. executed a deed without
any negligence, believing that it conformed to the agreement,
and did not contain the interest in controversy, and prayed
a reformation of the deed. Held, that such answer was not
objectionable, as not constituting a defense or furnishing ground
for reformation of the deed, on the theory that, if K. acted
only for the corporation, the deed did not convey his individual
property.
-Shields v. Mongollon Exploration Co., 137 Fed. 539,
70 C. C. A. 123.
A denial in a reply, on information and belief, of affirmative
matter alleged in the answer, is sufficient, under Code Alaska,
§ 69, Act June 6, 1900, 31 Stat. 343, c. 786, to prevent a judg-
ment on the pleadings for want of a reply thereto.
-Walton v. Wild Goose Mining & Trading Co., 123 Fed.
209, 60 C. C. A. 155.
2. Pleas in abatement in form of answer.
Answers in the nature of pleas in abatement are dilatory, and
create issues which cannot properly be tried with issues on the
merits. Issues on dilatory pleas should always be disposed of be-
fore issues on the merits are made, for in some cases the de-
termination of such dilatory issues may change the issues on
the merits. The proper construction of the statute (section 64,
Civil Code of Procedure of Alaska) is that the nominal or tech-
nical form of pleading shall be by answer, while those defenses
shall only be joined which will create issues that may be prop-
erly tried together, and that answers in the nature of pleas in
abatement should now, as formerly, be pleaded and determined
before the answer to the merits is interposed.
-Elliott v. Kuzek....
2. Insufficient pleadings may be stricken out.
A pleading which presents no defense under the law may be
stricken out.
3. Causes of action merged.
Plaintiff asked leave to file an amended complaint on two
causes of action; the first upon an original debt due from the
defendant in the Yukon Territory, and the second upon a Cana-
dian judgment in favor of plaintiff against defendant upon the
original debt. Held that, upon the rendition of the judgment,
the original debt was merged therein, that plaintiff had but one
cause of action, and that upon the judgment, and the amendment
asked for was denied.
-Alaska Commercial Co. v. Debney.....
4. Equitable defenses to law action.
The distinctions between actions at law and suits in equity and
the forms of such actions are abolished in Alaska. An equita-
ble defense may be interposed by defendant in an action of
ejectment.
-Pacific Coast Co. v. Brown....
In an action of ejectment brought under the Alaska Code,
abolishing distinctions between actions at law and suits in
equity, the defendant may plead and rely upon equitable de-
fenses in support of his possession and title to mining claims.
-Thompson v. Burk......
.249
5. Demurrer to complaint.
Under Code Civ. Proc. Alaska, § 68 (Carter's Code, p. 158;
Act June 6, 1900, 31 Stat. 343, c. 786), which provides that "the
plaintiff may demur to an answer containing new matter when
it appears upon the face thereof that such new matter does
not constitute a defense or counterclaim," a general demurrer
to an answer on the ground that it did not state facts sufficient
to constitute a defense was erroneously sustained, where the
answer consisted of two parts, the first of which denied the
material allegations of the complaint, and the second pleaded a
defense of new matter.
-Heid v. Ebner, 133 Fed. 156, 66 C. C. A. 222.
If a complaint shows upon its face that the court has no
jurisdiction, it is subject to demurrer and the case to dismissal;
but a new trial will not be granted for that reason.
Demurrer to a complaint does not admit conclusions of law
alleged in the complaint.
6. Substituted defense not permissible.
Upon a motion to vacate the former submission of the cause,
the court will not permit a defendant to abandon the defense
upon which the cause was tried by the court, and to substitute
another and different defense, and thereupon to try the case
again upon the new and substituted defense.
-Lindbloom v. Kidston......
7. Amendment of pleadings.
It is within the discretion of a trial court to refuse to per-
mit the filing of an amended answer, which sets up a new de-
fense materially changing the issues, and which was not offered
until after plaintiff had rested, and defendant had occupied
two days in introducing evidence.
-Alaska Commercial Co. v. Williams, 128 Fed. 362,
63 C. C. A. 92.
Where a complaint to condemn land for a right of way for
a pipe line was demurrable for failure to allege a public use,
it might be corrected by amendment.
[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Eminent
Domain,
-Miocene Ditch Co. v. Lyng, 138 Fed. 544, 70 C. C. A.
458.
Plaintiff brought suit in the name of the Willamette Tent &
Awning Company, a corporation. He filed an amended complaint,
substituting the name of Henry Wemme, doing business in the
name of the Willamette Tent & Awning Company, as the plaintiff
and real party in interest. Upon objection it was held that the
proposed substitution was not within the scope of section 92 of
the Alaska Code of Civil Procedure, allowing amendments to
pleadings, but the substitution of a new party plaintiff and leave
to amend was denied.
-Willamette Tent & Awning Co. v. West Coast Grocery
Where a plaintiff, who had been stricken from the complaint
on demurrer for misjoinder, was permitted to be reinstated on
the trial, and his name appeared in the title of the action in
the verdict, the failure of defendant to object at the time of
such reinstatement was a waiver of any objection to such ac-
tion, and cannot be urged as ground for reversal of the judg-
ment.
-Dalton v. Moore, 141 Fed. 311, 72 C. C. A. 459.
8. Petition in intervention.
A petition or complaint in intervention must state facts suffi-
cient, if admitted, to support a decree for intervener.
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