Zimmerman

Plaintiff brought an action in claim and delivery against defendants Frank Boyd and M. E. Gibson. The complaint contained such allegations only as are cus tomary or usual in such an action. The defendants demurred to the complaint on the sole ground of its uncertainty. They also answered the complaint and in the same instrument set up a cross-complaint. Neither of such pleadings contained any averment of fact other than such as related to the ownership, or the possession, or the right to the possession, of the property which was the subject of the action. Thereafter, on motion presented by defendant Boyd only, which was “based upon the documents, records and files of the action above entitled, and upon the affidavit of Frank Boj^d,” the trial court “ordered, adjudged and decreed” that the action be dismissed; that plaintiff “return all property taken from the defendant”; that the demurrer to the complaint be sustained; and that defendant recover his costs, but “no damages by reason of the taking of this property.” On the same day on which the hearing on the motion occurred, plaintiff caused dismissal to be entered of the action as to defendant Gibson.

On the hearing of said…