Gila Valley Copper Co. v. Gilpin

CUNNINGHAM, J. The appellees move to strike appellant’s briefs and dismiss the appeal, relying upon subdivision 5 -of rule 4 of the rules of this court (126 Pac. x), effective November 16, 1912. The motion was filed November 27, 1912. Evidently counsel overlooked an amendment to the rule, made "to conform to the requirements of section 21 of chapter 74, Laws of 1907. The appellant is within the rule, and the motion must be denied. There is but one assignment of error that we may consider. It is, the court erred in overruling appellant’s demurrer to the ■cross-complaint. The other assignments are too general and indefinite to be •considered, but, if such assignments were not obnoxious to this objection, they could not be considered, for the reason they call for a consideration of the evidence and the appeal as from the judgment alone. Miami Copper Co. v. Strohl, ante, p. 410, 130 Pac. 605. A failure to perfect an appeal from the order refusing a new trial deprives this court of jurisdiction to consider any question properly reviewable upon the trial of such motion. The assignment challenges the order of the court overruling plaintiff’s demurrer to the appellees’ cross-complaint. The demurrer alleges that the cross-complaint does not state facts sufficient to constitute a cause of action. An examination of the pleading attacked discloses a demand for affirmative relief; it is in form a cross-complaint, but in substance it is the adverse claim of defendants referred to in the complaint, setting forth the nature of the defendants’ title to the property. The demurrer is not in the language of the statute {par. 1354, Rev. Stats. Ariz. 1901) ; but, where affirmative relief is demanded, the language used is generally considered to "foe sufficient for all purposes. 31 Cyc. 320, authorities cited in note 1. We have carefully examined all the pleadings in ■the cause to which the demurrer is applicable, and find them sufficient as against such attack. We have found no reversible error upon the face of the record, and the appellant has failed to point out such error; therefore, the judgment is affirmed. FRANKLIN, C. J., .and ROSS, J., concur. Application for rehearing denied. [566] NOTES.—As to the seope and effect of writs of error, see note in 91 Am. Dec. 193. As to what judgments and orders may be appealed from, see note in 20 Am. St. Rep. 173.