Thompson

(after stating the facts as above).

[1] 1. The defendant has assigned as error the order of the trial judge overruling the demurrer interposed by it to the complaint of the plaintiff. By section 4228 of the Code of Civil Procedure of the state of Idaho, it is provided that “a demurrer is not waived by filing an answer at the same time.” It is contended that under this statute the filing of an answer in the United States court did not waive the objection to the complaint raised by the demurrer. The objection was that the complaint did not state facts sufficient to constitute a cause of action: First, because it was alleged in the .complaint that the dangerous condition of the premises of the defendant, and the danger of small children falling into the well or cistern and being drowned, and the habitual use of the premises by the minor son of the plaintiff, and other children of tender years, was open and notorious up to the time of the death of the plaintiff’s son; second, because the complaint was uncertain, unintelligible, and ambiguous, in that it was not therein alleged how long prior to the 1st day of June, 1911, the defendant had owned, operated, and maintained the…