Peri v. Jeffers , 53 Nev. 49 ( 1930 )

Since appellant insisted upon defending the suit, in an effort to defeat respondent's rights, he is properly taxed with a judgment. If he had desired to avoid a judgment against him, he was obliged to disclaim any interest in the subject matter of the suit. Glos v. Shedd, 75 N.E. at 890; Scott v. Aultman Co., 71 N.E. at 1114; League v. Stale, 57 S.W. at 35; Pinheiro v. Bettencourt,118 P. 941, at 945; Richards v. Jarvis, 238 P. at 89.

We maintain, therefore, that the appeal should be dismissed and the judgment of the lower court affirmed, upon the ground and basis that the complaint states a good cause of action as against appellant.

OPINION This is an action in claim and delivery. It is now before the court on the judgment roll alone; the bill of exceptions having been stricken on motion.

1. To the complaint a demurrer was filed stating several grounds therefor, which was overruled. Thereupon the defendants answered. By this answer they waived every ground of the demurrer urged save that the complaint does not state a cause of action. Lonkey v. Wells, 16 Nev. 271; Hammersmith v. Avery, 18 Nev. 225,2 P. 55; Hardin v. Elkus, 24 Nev. 329, 53 P. 854; Jones v. West End Con. M. Co., 36 Nev. 149, 134 P. 104.

2. The material facts necessary to be alleged in the complaint are: Plaintiff's ownership, either general or special, of the property, describing it; his right to its immediate possession, and the wrongful taking and detention thereof by defendants; and a demand for possession, in certain instances. 34 Cyc. 1464.

These facts are all alleged in the complaint. The demurrer was properly overruled.

The judgment is affirmed.