California Milling & Mining Co. v. Rocky Mountain National Bank

Morgan, Judge. The error assigned herein, upon which the argument is based, is to the ruling of the lower court sustaining a general demurrer to the plaintiff’s complaint. The recent opinion of the supreme court in the case of Sykes v. Kruse, 49 Colo., 560, 124 Pac., 596, handed down since the filing of the original briefs herein, determines the contention here in favor of the plaintiffs in error, and makes it unnecessary to write an extended opinion. In that case the supreme court had before it. a motion to strike a counter-claim in which the same allegations, in substance, were made as those contained in the complaint herein, involving, practically, the same subject matter, and the opinion of the supreme court in that case, holding that the lower court erred in sustaining the motion to strike out said counter-claim, is for all purposes applicable to this case, and the same in effect, as to hold that the ruling of the lower court in this case sustaining the demurrer to the complaint was error requiring a reversal of the judgment. The opinion of the supreme court is so direct and positive and so applicable in all respects to the contention here that the judgment of the lower court in this case is hereby reversed and the cause remanded for further proceedings, upon the authority of the ruling of the supreme court in Sykes v. Kruse, supra.