Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-01

be cast thereupon. and to prevent il
the action was commenced. We are
of this opinion for the reason that the
complaint does not contain the neces-
sary allegation to constitute it an &C
ton to quiet title, but on the other
hand, as appears from that portion o!
the complaint heretofore plead, it al
leges that respondents were "endeav-
oring to cloud and cas a cloud upon
said real property" and the evidence
offered was not such evidence a.
would be offered in an ordinary ac-
ton to quiet title, but such as would
be offered in an action to prevent a
cloud being cast upon the title of
plaintiffs. tuts 1a ..s5 1.g
We think that, in view of the ma
ture of the complaint, counsel for re-
spondents had a right to assume that
the action was brought, not to quiet
title, but to prevent a cloud being
cast upon the title of plaintiffs, and
therefore was justified in not urging
in the trial court that the complaint
did not state a cause Of action.
But to go a step further, it seems
to us that appellants are in a rather
peculiar position, in that they did not
demur to the sufficiencv of the ans
wer of respondents in the court be-
low, or in n way question that il
stated a defense to the matter plead
in the complaint, until after judg-
ment, but now assert that notwith-
standing this fact they can take adj
vantage of RESPONDENTS failure to de-
muir to the complaint on the ground
that it does not state a cause of &C
ton. I'D y,
it is the general rule applicable to
pleading that a demurrer runs thr0uN,
the whole series of pleadings, and
will be sustained to the first defective
pleading. (31 Cys. 1889. Of course,
if the answer so aids the complaint
as to make out a cause of action
against a defendant, the rule would
not apply: but such is not the fact in
this instance. So it seems that IN any
event appellants, contention that this
court should reverse the Judgment
and order that judgment be entered
in favor of appellants can not be sus-
tanned. -..
The only reason offered by pam
tiffs, either III their complaint or in
their evidence, why the property
should not be sold, is the claim assert
ed bv them that it is exempt as 4
homestead. The trial court held that
this claim was not we'll founded, and
this finding is not assaulted in this
court.
1t is ordered that the judgment be
affirmed.
COLEMAN. }.
I concur:
NORCROSS, &. J..
M'CARRAN, J. (Concurring in the
order):
l concur in the order.
1t would appear from the record in
this east that the action had been
commenced with a view to establish.
ing a homestead exemption in favor
of appellants herein, which exemp-
ton, if established, would relieve the
property from sale under execution
The matter of the right Of appellants
to claim a homestead exemption
whether correctly or enormously de.
cided by the court below, is not in.
volved in the appeal: counsel for ap.
pellants in his oral argument. IN re-
Spouse to a question propounded by
the court, so asserted. The question
involved was one, as we view it. in
tended to prohibit the respondents
from selling the property in question
under execution issuing pursuant to
a Judgment obtained.
Assuming, for arguments sake, thai
the question was one to quiet title,
if the homestead phase of the con-
troversy were abandoned, as we take
it to have been, the court might well
have rranted all of the prayer of ap-
pellant's complaint, in fact might
have renOred judgment On the plead
lngs and hence declared that respond
ents had no right, title or interest in
or to the real property described in
the complaint and hat appellants
were the owners thereof, seized in fee
simple absolute, and that they were
entitled to immediate possession oil
the premises; and even if judgment
had been rendered in such a form, it
would avail nothin~ in behalf of ap-
pellants in the way Of preventing the
levy of an execution. or the sale OF
the premises under the execution is
sued pursuant to the Judgment, prev.
iously rendered in another case
wherein the appellants here were de-
PENDANTS and the respondent the
Seheeline Banking & Trust Company
became a Judgment creditor.
1t the appeal in this case involved
an order OF the trial court in its find
ing and conclusion as to the home
stead exemption, l am not ready to
say that the findings of the trial court
in that respect or a judgment based
on such findings could have been af-
hrmed. Definitely as to this, how
ever, ~I5eMpress 10 opinion.
We are referred to no law, and we
know Of none, in the light of which
a suit to- quiet title will serve the pur-
pose of an action to prohibit a sale
under execution issued pursuant to
Judgment.
We take it from the position of
counsel for appellants expressed in
his oral argument, that they concede
that the property in question is not
subject to a claim of homestead ex-
emption in behalf of appellants. This
being conceded, the property must
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