
    CHARLES O. MILES et al. v. D. W. McCALLAN et al.
    Judgment foe Plaintiff on the Pleadings can not be rendered when the answer denies any of the material allegations of the complaint, or sots up new matter constituting a defense.
    Findings should be Confined to Contested Facts and determined from tlie evidence. Findings as to facts admitted by the pleadings are unnecessary.
    
      Appeal from a judgment of the district court of the first judicial district, county of Pinal, entered in favor of the-plaintiffs. The opinion states the facts.
    
      Horace L. Smith, for the appellants.
    No appearance for the respondents.
   By Court,

Erench, 0. J.:

This is an action under the statute to quiet title to a mining claim.

Both the complaint and answer are verified. The answer expressly admits certain allegations of the complaint, but expressly and specifically denies the more material allegations. It also sets up new matter as a separate defense which if established by proofs would be fatal to plaintiffs’ action.

The practice of expressly admitting in an answer portions of the complaint is not commendable, because it is. entirely unnecessary, and adds to the length of the answer without effecting any useful result. The silence of the-answer as to any allegation of the complaint effects precisely the same result, and shortens and simplifies the pleadings.

What is not denied is admitted, and there can be no reason for expressly admitting it.

A motion for judgment on the pleadings was made by plaintiffs and granted by the court. This was clearly error.. The answer specifically denies both the ownership and the possession of plaintiffs, and the original location by plaintiffs’ grantors. These are material allegations without proof of which the plaintiffs can not maintain their action.

The separate answer presents another bar to any judgment on the pleadings. In passing upon the motion for judgment on the pleadings, the court files findings of fact, and apparently bases its judgment upon such findings. Strictly, there can be no findings of fact when the judgment is upon the pleadings. Such judgment rests upon the pleadings. A finding of fact is a determination of a fact by the court, which fact is averred' by one party and denied by the other, and this determination must be founded on the evidence in the case. Such facts as are properly averred on the one side, and properly denied on the other, constitute the issues in the case. All findings outside of these issues are of no legal force or value. The findings should be confined to the contested facts, and their determination attained from the evidence in the case.

Facts admitted by the pleadings may be referred to, mentioned, or recited, but this should be done in such a way as to distinguish them from the findings on the controverted facts, without resurrence to the pleadings.

Judgment reversed, and cause remanded for trial on the issues raised by the pleadings.

PlNNEY, J'.:

I concur in the judgment, but think it immaterial whether ■the answer admits or is silent as to portions of the complaint.  