¶1Action to Recover Taxes Paid — Judgment on Pleadings — Effect of General Denial.
¶2In an action to recover taxes alleged to have been illegally demanded, and to have been paid under protest, a - judgment for plaintiff on the pleadings is not authorized where the answer contains a general denial, and no admission of the allegation of payment.
¶3In Error to the Circuit Court of the United States for the District of Montana.
¶4T. J. Porter, for plaintiff in error.
¶5Clayberg, Corbett & Gunn, for defendant in error.
¶6Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
¶8The judgment of the circuit court in this case (89 Fed. 577) was rendered upon the pleadings in favor of the plaintiff in a case in which the Western Ranches, Limited, sued the county of Custer, in the state of Montana, tor taxes which had been paid under protest. In the answer the defendant denied “each and all of the allegations of plaintiff's complaint not herein specifically admitted or denied.” Among other allegations not admitted or elsewhere denied was the averment that the taxes had been paid, and that they had been paid under protest. In the face of the denial of these allegations, it was error to enter a judgment for the plaintiff upon the pleadings. The defendant in error, by its counsel, so admits, and now moves this court that the judgment be reversed, and the cause remanded for a new trial. The plaintiff in error makes no opposition to the motion. The motion will be allowed. The judgment will he reversed, and the cause remanded for a new trial.