Laughlin v. Thompson

McKinstry, J. The action is to recover certain lumber or its value.

The court below did not err in overruling the plaintiff’s general demurrer to the second amended answer. The answer denies that the plaintiff is or was the owner of the property described in the complaint, and denies that the property is of greater value than three hundred dollars. The answer admits the defendant to be in possession of the property, and admits the demand of plaintiff for a delivery of the property and defendant’s refusal. The narrative of the wreck of the vessel San Luis, and the rescue of a portion of her cargo by Frederick Wilson and other persons, however impertinent to a determination of the rights of the parties herein, cannot be said to make the answer “ambiguous, unintelligible, or uncertain.” And so of the insufficiency of the defendant’s averment of facts which would constitute a justification of his seizure of the property, as constable, if they are insufficient. They do not render the answer ambiguous.

Most of the testimony of Frederick Wilson, as set forth in the bill of exceptions, was totally irrelevant; but the plaintiff did not object to it on that ground, but only objected to its being admitted previous to evidence upon another point.

The appeal is from the judgment alone, and the court below failed to find upon the material issues made, or attempted to be made, by the answer. There is no finding upon the averments of the facts which would alone justify the defendant in taking the property out of the possession of the plaintiff.

[289]At the trial, evidence was or was not given of the institution and pendency of the alleged action brought by Wilson against the present plaintiff in the justice’s court, that plaintiff was constable, and that as such he received from the plaintiff in that action an affidavit, order, and written undertaking, substantially complying with sections 510, 511, and 512 of the Code of Civil Procedure. If the evidence was given, the court should have found in favor of the defendant upon his plea purporting to justify a taking otherwise wrongful. If the evidence was not given, the court should have found against the defendant upon that plea.

The foregoing assumes the justification to have been sufficiently pleaded, in the absence of a specific demurrer, or of a general demurrer addressed to the particular defense.