right.

"That on the 13th day of April, 1912, in the above-entitled court, Union Canal Ditch Company, a corporation, and a number of other corporations and individuals, as plaintiffs, instituted their certain action against said Pacific Reclamation Company and others, said action in said court being numbered 1899. That the scope and purpose of said action above mentioned, was the same in character as the present action, in that the plaintiffs in said action mentioned sought to enjoin and restrain said Pacific Reclamation Company from storing and impounding in said reservoir the waters flowing in said Bishop creek, and to restrain and enjoin said Pacific Reclamation Company from diverting and using the waters of said Bishop creek so stored and impounded, and also to enjoin said Pacific Reclamation Company from diverting by means of its canals and other devices the waters flowing in Burnt and Trout creeks, which were alleged to be, and which are, tributaries of said Bishop creek, the point of junction between said Burnt and Trout creeks with said Bishop creek being below the place or location of said reservoir and said diverting dam constructed in the bed and across the channel of said Bishop creek. That the action, above mentioned, wherein Union Canal Ditch Company, a corporation, and others, were plaintiffs, and said Pacific Reclamation Company, a corporation, and others, were defendants, was, as alleged in said complaint, instituted for and on behalf of plaintiffs therein named and also for and on behalf of all other corporations, persons, and associations similarly situated to plaintiffs therein named and having a common and general interest in the subjectmatter of the action with the plaintiffs. That plaintiff herein was, at the time of the institution of said action, above mentioned, similarly situated as the plaintiffs therein named, and had a common and general interest in the subjectmatter of the action with the plaintiffs therein named. That the plaintiff herein was named in the answer filed in said action as one of the parties who should be specifically designated and brought in as a party to said action; that the institution of said action, above mentioned, and the hearing upon the order to show cause why injunction should not issue pendente lite, said hearing continuing from May 20 to June 1, 1912,

and the issuance of said injunction pendente lite,

are well known and advertised throughout the state of Nevada. That, upon information and belief, said action, so brought by Union Canal Ditch Company and others, was brought for and on behalf of plaintiff herein, and that plaintiff herein knew of the pendency of said action. That said action was pending in said court from the 13th day of April, 1912, to the 19th day of June, 1915."

It was to this affirmative answer that plaintiff demurred, the overruling of which demurrer occasioned the appeal.

The principal contention of appellant here is that in the case of Union Canal Ditch Co. et al. v. Pacific Reclamation Co. et al., the appellant herein was not a party plaintiff or defendant, inasmuch as his name did not appear in connection with that suit. Appellant contends in this respect that not being a party to that action, he cannot be bound by the judgment, and no judgment of the court

We are cited to the case of Ahlers v. Thomas, 24 Nev. 407, 56 Pac. 93, 77 Am. St. Rep. 820, to the effect that the former action must have been between the same parties before they can be bound by the judgment. Assuming that all of appellant's contention was correct, we are at a loss to know how it can avail anything in his behalf under the record before us. First and foremost, issues as to matters essential to the success of plaintiff were, by the complaint and the specific denials in the answer, squarely joined.

Section 295 of our Civil Practice Act (section 5237, Rev. Laws 1912) provides:

"An action may be dismissed, or a judgment of nonsuit entered in the following cases: 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the court or jury.

In the case of Clune v. Quitzow, 125 Cal. 213, 57 Pac. 886, the Supreme Court of California held, under an identical Code provision, that upon failure of the plaintiff to appear at the trial where defendant had filed a cross-complaint, the defendant is not bound to take a dismissal of the action, though he might do so, but has the right under the section to proceed with the case in the absence of the plaintiff and have judgment entered upon the merits finally disposing of the case.

[1] As we view the record before us, the trial court might have sustained the demurrer as to respondent's affirmative matter relative to the judgment in the case of Union Canal Ditch Co. v. Pacific Reclamation Co. Indeed, if on a motion to strike, this allegation had been stricken from respondent's affirmative answer, there was at least one other issue raised in the affirmative answer, to wit, the priority of appropriation of the respondent, which, if undenied by replication, must, under the statute (Stat. 1915, pp. 192, 193), be taken as true.

By the amendment to our Civil Practice Act (Stat. 1915, pp. 192, 193), it is provided that:

"Each material allegation of the complaint not controverted by the answer, and each material allegation of new matter in the answer not controverted by the reply, and each material allegation in the counterclaim not controverted by the reply, must for the purposes of the action, be taken as true. # *

[2] As we have already stated, the issue was squarely joined by the answer of respondent. This put the plaintiff, appellant herein, upon his proof to establish the allegations of his complaint. Failing to do this, we are referred to no rule, and are aware of none, that would preclude the court from dismissing the action on motion of the defendant. The affirmative defense, as we have said, set up at least one allegation which, if undenied, must, under the statute, be taken as true, and which, if uncontrovert

[3, 4] A demurrer may be made to a whole pleading or to the statement of any of the grounds embodied therein. If, however, a demurrer is filed to the whole pleading, it may be overruled if any of the statements are held to be good in furtherance of the purpose of the pleading, whether it be in establishing an action in complaint or in interposition of a defense. Griffiths v. Henderson, 49 Cal. 566; Holbert v. St. Louis, K. C. & N. Ry. Co., 38 Iowa, 315; Hale v. Omaha National Bank, 49 N. Y. 626; Bondurant v. Bladen, 19 Ind. 160; Carter v. Wann, 6 Idaho, 556, 57 Pac. 314; Knapp v. Ross, 181 Ill. 392, 55 N. E. 127; Jones v. Iverson, 131 Cal. 101, 63 Pac. 135; Palmer v. Breed, 5 Ariz. 16, 43 Pac. 219; Jensen v. Dorr, 159 Cal. 742, 116 Pac. 553; A. O. P. v. Dixon, 45 Colo. 95, 100 Pac. 427; Johnson v. Ry. Co., 243 Mo. 278, 147 S. W. 1077; Baker v. Water Co., 40 Mont. 583, 107 Pac. 819, 135 Am. St. Rep. 642.

In this respect, the rule applies not only as to a complaint, but with equal force to an answer and to the affirmative allegations therein. Farmers' Ins. Co. v. Menz, 63 Ill. 116; Johnson Co. v. White, 78 Minn. 48, 80 N. W. 838.

[5] A demurrer which is directed to an entire plea or an entire answer, which plea or answer contains several separable parts, must be overruled if any one of the parts is in itself good. Eich v. Greeley, 112 Cal. 171, 44 Pac. 483; Holbert v. St. L., K. C. & N. Ry. Co., supra; Van Housen v. Broehl, 59 Neb. 48, 80 N. W. 260; Bergstrom v. Advertiser Ass'n, 147 App. Div. 774, 131 N. Y. Supp. 1025; Harrill v. Weer, 26 Okl. 313, 109 Pac. 539; Williams v. Black, 24 S. D. 501, 124 N. W. 728.

[6] But aside from our views as here expressed, let us consider the question most relied upon by appellant, that the former judgment in the case of Union Canal Ditch Co. v. Pacific Reclamation Co. was not binding upon him, inasmuch as he was not a party specifically named in that action. What shall be said as to the sufficiency of the allegations in respondent's answer as to the former action, parties, and final judgment? The vital point as against appellant's demurrer is not the ultimate fact itself, but rather is it the allegation of the existence of a former judgment in a cause alleged to have been duly instituted and tried in a court of competent jurisdiction, involving the identical subject-matter, and the further allegation properly connecting the parties in the present action with the force and effect of that former judgment. Here the allegations as to the former judgment set forth the institution of the former action and the date

It recites that the Pacific Reclamation Company (predecessor in interest to defendant here) was the party defendant. It asserts that the scope and purpose of the former action were the same in character as those of the present action in which appellant is plaintiff and proceeds to specify the scope and purpose in particular. The answer further alleges:

That the action in the former proceedings was, "as alleged in said complaint, instituted for and on behalf of all other corporations, persons, and associations similarly situated to plaintiffs therein named, and having a common and general interest in the subject-matter of the action with the plaintiffs."

Further the answer avers:

"That plaintiff in this action was, at the time of the institution of the former action, a party similarly situated as the other plaintiffs therein named, and that he had a common and general interest in the subject-matter of that action with the plaintiffs therein named."

Further it alleges:

"That the plaintiff herein was named in the answer filed in said action as one of the parties who should be specifically designated and brought in as a party to said action," and "that said acby Union Canal Ditch Company and others was tion [referring to the former action] so brought brought for and on behalf of plaintiff herein."

Here were allegations setting forth the court, the jurisdiction, the subject-matter, the scope and effect of the action, the connection of the plaintiff with that subjectmatter, the final judgment bearing upon and having to do with the subject-matter, the common and general interest of the appellant herein in that subject-matter, and the connection of the plaintiff here with the force and effect of the former judgment. The averments here made were sufficient, in our judgment, to constitute a proper pleading of former judgment affecting the parties.

[7] The question here, being one on demurrer, is not as to whether the appellant was in fact a party to the former action and bound by the judgment. The fact in that respect was for the court to determine if the same was denied. To express the matter concretely, we may put it thus: If the appellant here was in fact a party to the former action, and if the matter adjudicated in that action was the same as that sought to be adjudicated here, then the appellant would be bound by the judgment in the former action. If the former action was brought "for and on behalf of piaintiff, appellant here," and with reference to the identical subject-matter as that involved in the present action, and the defendants here were in fact successors to beneficiaries of that judgment, then such judgment would constitute a defense here. The proper averment of these elements, as we think they were properly averred in this instance, would stand against demurrer, and would

[Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. 73.] 3. ELECTIONS 291 PRESUMPTION DENCE OF MARRIED MAN. The residence of a married man is presumed to be in the voting district where his wife lives. [Ed. Note. For other cases, see Elections, Cent. Dig. § 286; Dec. Dig. 291.] 4. ELECTIONS 291 - - PRESUMPTION DENCE OF VOTER.

--

RESIThe presumption is that one voting at a previous election in a certain voting precinct, in the absence of proof of change of residence, is still a resident of that voting precinct. [Ed. Note. For other cases, see Elections, Cent. Dig. § 286; Dec. Dig. 291.] 5. INTOXICATING LIQUORS 37-LOCAL OPTION CONTESTS PRESUMPTION VOTING WITH PARTY. In an election contest on the sole issue of allowing sale of intoxicating liquors, the presumption was that a voter who had previously affiliated and acted with the "drys" voted such ticket at the election.

therein. Such elections may be called and held not oftener than once in every two years. An election was called and duly held in Gunnison City, a city of the third class in Sanpete county, this state, on the 29th day of June, 1915, to determine the question of whether intoxicating liquors should or should not be sold in said city for the ensuing two years. After the election the votes were duly canvassed as provided by law. Such canvass disclosed that the number of votes for and against sale were tied; that is, there was an equal number of votes cast both for sale and against sale. Plaintiff, within the time required by section 914, supra, instituted this contest, making the city, the mayor, and the city councilmen, as the board of canvassers of the city, and the city recorder parties to the action. As a ground of contest the plaintiff alleged that illegal votes were cast at said election, and if such votes were excluded from the count as they should have been, the result of the election would be in favor of sale. Neither the city nor any

-ADMISSIBILITY-DECLARATIONS.

A voter's declarations and conduct about the time of and recently before casting his ballot may not be proved, in an election contest in which he is not interested as a party, as tending to establish how he voted, unless such declarations are part of the res geste as determined from all the evidence as in other cases of res gestæ.

[Ed. Note. For other cases, see Elections, Cent. Dig. §§ 291, 292; Dec. Dig. 293(3).] 7. INTOXICATING LIQUORS 37-CONTEST PARTIES-DEFENDANT.

In a city election contest on the issue of allowing sale of intoxicating liquors, where the city authorities refused to defend the election, an elector and resident of the city was allowed to do so on his own behalf, in view of the statute providing that an elector may file a contest, and that "any proposition submitted to the vote of the people may be contested."

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. 37.] Appeal from District Court, Sanpete County; Jos. H. Erickson, Presiding Judge.

Election contest by Marenus Beauregaard against Gunnison City, in which E. L. Swalberg filed answer on his own behalf. From judgment affirming the election, plaintiff appeals. Reversed and remanded.

Lewis Larson, of Manti, and R. A. McBroom, of Salt Lake City, for appellant. J. W. Cherry, of Mt. Pleasant, and Dilworth Woolley, of Manti, for respondents.

FRICK, J. This is an election contest which was instituted by plaintiff as an elector of Gunnison City pursuant to Comp. Laws 1907, § 914. The election was held pursuant to Laws Utah 1911, c. 106, §§ 57 to 63, inclusive, wherein it is provided that elections may be called and held in the cities, towns, and county voting units of this state for the purpose of determining whether intoxicating liquors shall or shall not be sold

E. L. Swalberg, who, however, did not appear for the city nor the other defendants, but did so on his own behalf. By leave of court first had and obtained he filed an answer and defended against the contest. A trial to the district court of Sanpete county resulted in findings and judgment affirming the election held as aforesaid, and the plaintiff appeals.

The principal assignments of error relate to the rulings of the district court in the exclusion of certain evidence proffered by the plaintiff. The plaintiff attempted to prove that certain persons had voted illegally because they were not qualified electors of the voting district in which they had cast their ballots. He called such persons as witnesses, and offered to prove by them that they did not reside within the voting district in which they had cast their ballots at the election in question. The witnesses all refused to answer the questions propounded to them respecting their residence, upon the alleged ground that in answering them they might incriminate themselves, in that by doing so they might disclose the fact that they had voted illegally, and thus would be subject to prosecution and punishment under our election statutes. Plaintiffs' counsel insisted that the claim made by such witnesses was without merit, since, under our statute, even though the witnesses had voted illegally, they, nevertheless, would be immune from prosecution and punishment, and therefore could not legally claim the privilege and refuse to answer the questions. The district court, however, sustained the witnesses' claims, and ruled that they need not answer the questions propounded to them. Counsel excepted to the rulings, and they now insist that the court erred in that regard. In this state it is an offense punishable by fine or by