Community Ditch or Acequias of Tularosa Townsite v. Tularosa Community Ditch

OPINION OF THE 'COURT.

WRIGHT, J. 1 The sole question for determination in this cause is whether the court erred in striking from the files the plaintiff’s answer to the special plea in bar, as unresponsive, and entering judgment of dismissal thereon upon said special plea in bar. An examination of the pleadings shows that the plaintiff’s answer to the special plea in bar raises a direct issue of fact upon the question of whether or not the plaintiff in this case was a party to the proceedings had in cause No. 293, wherein the Tularosa Community Ditch, a corporation, and others, were plaintiffs, and the Tularosa Land and Cattle Company, a corporation, and others, were defendants. Upon this disputed question of fact the plaintiff was entitled to be heard and to introduce evidence in support of its contention. The lower court by summarily striking the answer from the files as not responsive, denied the plaintiff its right so to be heard upon the issue of fact. The action of the lower court, therefore, in striking plaintiff’s- answer to the special plea in bar from the files as unresponsive, and entering judgment of dismissal upon the said special plea in bar was error. This cause is, therefore, reversed and remanded to the district court, with instructions to proceed in accordance with this opinion.