Durell v. Abbott

Conaway, Justice. This is an action to quiet title brought by defendants in error as plaintiffs below to quiet title to realty of which they allege that they are in possession, and to which they claim title in fee. To this petition there was a demurrer on the ground that the allegation that plaintiff claims title in fee is not sufficient, but that the nature of the title should be .set up. The authorities cited by plaintiff in error are generally as to what evidence is necessary to prove title. The evidence need not and should not be pleaded. The petition is in a form which is well approved by the best authorities. The demurrer was properly overruled. Defendant defaulted in failing to plead further in the time given by the court for that purpose, which was twenty days from June 1, 1893. On the 7th day of October the cause was continued by consent of parties until the next term. Afterward, on the 11th day of November, and during the same term, judgment was taken on the default. [268] Plaintiff in error claims that this was error, and asks this court to reverse the judgment. Tl^is question is raised for the first time in this court. Whatever relief the plaintiff in error is entitled to, if any, should be sought in the first instance in that court. The district court had unquestioned jurisdiction of the subject-matter of the suit to try and determine and render judgment in the case, and there was a general appearance by plaintiff in error by filing his demurrer and taking time to answer. It is insisted that this court should reverse the judgment on account of an alleged irregularity which has never been called to the attention of the trial court. We are of the opinion that this would violate well-established rules and precedents. See Bradley v. Syndicate Imp. Co., 13 Pac., 79 (supra). Judgment affirmed. (xroesbecK, C. J., and Potter, J., concur.