Barnhart v. Fulkerth

Fitzgerald, C. — This is an action brought by plaintiff against the defendants to recover the possession of 4,255 bags of wheat, alleged to have been wrongfully and unlawfully taken by the defendants from the possession of plaintiff, or for the sum of $8,260, the alleged value thereof, in case delivery cannot be had, and for the further sum of $2,000 as damages for the detention thereof.

The answer specifically denies the material allegations of the complaint, and justifies under writs of attachment and execution.

[159]Plaintiff demurred, generally, to the answer, and separately, upon the same ground, to that part of it setting up matter by way of an affirmative defense. The demurrer was overruled, and the case tried by the court without a jury, and judgment rendered in favor of plaintiff in the sum of $2,540 and costs. This appeal is taken by plaintiff, on the judgment roll alone, from that part of the judgment which denies to him a portion of the relief claimed and demanded by him in this action.

The case has been here before on appeal, and is reported in 73 California, 526. All the questions necessary to the decision of the case were there decided, and are now the law of the case, with the single exception of the matter by way of estoppel in pais, pleaded for the first time in the answer as amended, after the case was reversed on the former appeal, but which was sought to be proved and was relied upon as a defense at the previous trial.

As to whether the matter set up by way of estoppel was necessary to be pleaded, we are not called upon, in view of the amended answer, to decide. But this court, on the former appeal, considered and disposed of the questions of estoppel raised by the evidence in the case, and relied on as matters of defense, against the objections made and urged by plaintiff, upon the ground that such defense was not available because it was not set up in the answer.

The facts necessary for a proper understanding of the case as now presented for decision are, substantially, as follows: In November, 1878, H. 0. Matthews and his wife commenced an action in the district court of Stanislaus County, against one J. T. Davis, to recover on his promissory note made in their favor for three thousand five hundred dollars. After the filing of the complaint, a writ of attachment was issued at their instance against the property of Davis, and placed in the hands of the defendant Fulkerth, the sheriff of the county, who executed