While no decision has been found expressly holding that such language is limited to cases in which the time allowed has not expired, the contrary is implicit in several decisions which hold under statutes practically identical with ours that the matter is entirely discretionary. Taylor v. Los Angeles S.L.R. Co., 61 Utah 524, 216 P. 239; Wallace v. Merfeld, 95 Okla. 296, 219 P. 702; Cummins v. Standard Oil Co., 132 Kan. 600, 296 P. 731; Spaulding v. Porter, 94 Colo. 496, 31 P.2d 711; Brown v. Becker, 135 Or. 353, 295 P. 1113. In the case last cited, where the reply had not been filed in time, the Court added, 295 P. at page 1114, that "this discretion is to be exercised in accordance with the spirit of the law and in a manner to subserve and not to defeat the ends of justice."
In addition, certain implied covenants in oil and gas leases arise out of the lessor/lessee relationship. We have previously noted that the law of oil and gas is unlike any other area. Spaulding v. Porter, 94 Colo. 496, 31 P.2d 711 (1934). On March 16, 1978, the Davises filed an action against Sandlin and the other lessees claiming, among other things, that the lease had terminated because of the lessee's breach of the implied covenant to market oil and gas produced from the Davis lease. Sandlin counterclaimed for damages resulting from the Davises' refusal to allow him onto the property to drill for oil or gas. On May 23, 1986, the district court found that the lease had terminated but that Sandlin had a property interest by virtue of a lease between Sandlin and a third party, the Allensworths.
Not once in its entire history has this court deviated from this norm of procedure. Underside v. Lathrop, Okla., 645 P.2d 514, 517 [1982]; Spaulding v. Porter, 94 Colo. 496, 31 P.2d 711, 713 [1934] and Seufert v. Stadelman, 178 Or. 646, 167 P.2d 936, 938 [1946].Cates v. Miles. 67 Okla. 192, 169 P. 888 [1918]; Roach v. Choctaw Lumber Co., 131 Okla. 72, 267 P. 256, 257 [1928].
See also annotation in 58 L.Ed.2d 938 [1980]. In an ordinary action, when the demurrer to a pleading stands sustained, issues tendered by it are eliminated from the court's cognizance, Spaulding v. Porter, 94 Colo. 496, 31 P.2d 711, 713 [1934], the defective pleading is "overturned" and, if the pleader desires to proceed further, an amended pleading must be filed. Seufert v. Stadelman, 178 Or. 646, 167 P.2d 936, 938 [1946]. The Restatement of Judgments now speaks of res judicata as "claim preclusion" and of collateral estoppel as "issue preclusion".
" See also Spaulding v. Porter, 94 Colo. 496, 31 P.2d 711; Bothroyd v. Board of Com'rs. of Larimer County, 43 Colo. 428, 97 P. 255; and Montelius v. Atherton, 6 Colo. 224. III.
An order denying the motion to strike portions of the pleading rests in the discretion of the trial court and ordinarily the trial court has a wide latitude in granting or denying such a motion. Newell v. Newell, 68 Colo. 585, 192 Pac. 505; Spaulding v. Porter, 94 Colo. 496, 31 P.2d 71. The governing principles are accurately set forth in 2 Moore's Federal Practice 2314, 2315, 2317 and 2318. "A mass of evidence unnecessarily pleaded, legal conclusions argued at length, paragraphs seeking to retry a previous action, or obviously sham matter may be stricken.
The cases of Clark v. Dennis (Ark.) 291 S.W. 807; Allen v. City of Sterling (Colo.) 230 P. 113; Spaulding v. Porter (Colo.) 31 P.2d 711, and Maverick Oil Gas Co. v. Howell (Ky.) 237 S.W. 40, are not in point or helpful in determining the question which we consider. There is no need to review the Oklahoma cases relied on, to wit: McCully v. McCully, 184 Okla. 264, 86 P.2d 786; Strain v. Statler et al., 112 Okla. 233, 240 P. 614; Pasley v. DeWeese et al., 183 Okla. 424, 82 P.2d 1066, and Mills v. District Court of Lincoln County et al., 187 Okla. 247, 102 P.2d 589, further than to say that in each there was involved either real estate or an interest therein coming within the express language of the statute, and they do not conflict with the holdings herein.
"We conclude that the judgment should be affirmed, without prejudice to the institution of a new suit in the proper county." Spaulding v. Porter (Colo.), 31 P.2d 711, holds: "1. It is said there was error in denying the defendants' motion for a change of venue from Morgan county to the city and county of Denver.
What we have said in this connection largely disposes of the placer claimants' assignment of error based upon the trial court's overruling of their motion to strike the reply of the Colorado Feldspar Company to the answer of plaintiffs in error. In the court below the asserted grounds for the motion to strike were that the reply was not filed in apt time; that it was filed without leave of court first had and obtained; and that it attempted to bring new parties defendant into the action after the same was at issue and had been set down for trial. The denial of the motion to strike was a matter properly within the trial court's discretion and no abuse appearing the ruling will not be disturbed by us. Spalding v. Porter, 94 Colo. 496, 31 P.2d 711. The placer claimants now argue that this reply was the first and only pleading of the Colorado Feldspar Company which can be considered as meeting the requirements of section 2326, supra, as an adverse suit, and say that because it was not filed within the thirty day period the court erred in not striking the belated pleading. This contention could be disposed of adversely to placer claimants, because no objection on this ground was made to the trial court; however, we believe that even before this reply was filed, the pleadings were amply sufficient to raise the proper issues in support of the lode claimants' adverse claim.
By answering the complaint, after the court's adverse ruling, the plaintiffs in error waived any error in the denial of the motion. Sholes v. Bank, 82 Colo. 432, 261 Pac. 456; Spaulding v. Porter, 94 Colo. 496, 31 P.2d 711. The plaintiffs in error likewise argue as a matter of law, but it is debatable if the point is covered by any assignment of error, that the references to section 6442, C. L. 1921 (3 '35 C. S. A., c. 101, ยง 15), contained in section 6445, supra, under which the liens here are claimed, limit the operations for which the performance of labor or the furnishing of materials gives a right of lien in the latter section to "construction, alteration, addition to or repair," as used in section 6442, supra.