O'DONNEL, Respondent, v. GAINAN et al., VANDERBECK, Intervenor, Appellants

O’DONNEL, Respondent, v. GAINAN et al., VANDERBECK, Intervenor, Appellants. [Submitted February 6, 1896. Decided February 10, 1896.] Aepeai, — Confession of error — Judgment on demurrer. — In ejectment where the answer denied specifically all the material allegations of the complaint and undertook to set up title in the defendants, to which a demurrer alleging generally that the answer did not state facts sufficient to constitute a defense is sustained, and one of plaintiff’s counsel in this court confesses the error, the ease will be reversed without further examination. Appeal from Fifth Judicial District, Madison County. Ejectment. Plaintiff’s demurrers to the answer and complaint in intervention were sustained by Showers, J. Reversed. Smith dc Word and Lew L. Callaway, for Appellants. IF. A. Clark and George F. Shelton, for Respondent. [MAJORITY — Per Curiam.] Per Curiam. The defendants and the intervenor appeal from the judgment rendered against them upon the sustaining of plaintiff’s demurrers to the answer and the petition in intervention. The action was ejectment and injunction to stay waste. The complaint set up the acquisition, of a mining title by plaintiff, by performance of the acts required for the location of a mining claim. The position of the intervenor was that he owned the premises as a mining claim, and had leased the. same to the defendants. The answer of the defendants and the petition of the intervenor denied specifically all the material allegations of the complaint, and undertook to set forth a title in the defendants and the intervenor. The plaintiff demurred to the answer and petition, on the ground that they did not set up facts constituting a defense. The demurrers were sustained, and judgment accordingly entered for the plaintiff. From the judgment, defendants and intervenor appeal. One of the counsel for respondent has filed a brief, in which he contends for the correctness of the ruling of the district court. Another of the counsel for the respondent appeared in court upon the oral argument, and stated that in his opinion the ruling of the court below could not be sustained; that is to say, he confessed error. We have no doubt whatever that counsel is correct in this confession. It does not seem to us to be necessary to go further into the case. The judgment is therefore reversed, and the case is remanded, with instructions to the district court to overrule the demurrers. Deversed.