9 Mont. 251 | Mont. | 1890
This action was commenced in the Probate Court of Custer County, against the sheriff and his deputy, to recover the possession of certain horses, or the value thereof, and also damages for their wrongful use. The complaint alleged that “the plaintiff was the owner of, and entitled to the possession of,” the property. The answer denied this and the other allegations of the plaintiff, and as new matter, pleads a justification for the officers under a writ of attachment. The case was appealed to the District Court, and upon the trial by a jury, the defendants offered to show, by the cross-examination of George Bickle, that after the sale of the horses by him to his brother, the plaintiff, and before the levy of the attachment, the witness “ remained in continuous and open possession and control ” of the property, “ in order to show that the said sale from
The appellants contend that the foregoing cross-examination was legitimate, under the denial in the answer of the title of the respondent to the property. The transcript is imperfect, and fajls to show the direct testimony of the witness; and we are not informed concerning this important subject. But counsel concur in the statement that the court below ruled that evidence of this character could not be introduced without an allegation in the answer to this effect, and that the general denial was insufficient. The authorities support the proposition. In Smith v. Auerbach, 2 Mont. 349, this court, by Mr. Justice Knowles, said: “Where fraud is a necessary part of a plaintiff’s or defendant’s case, the facts constituting the fraud should be set forth so that the opposite party may know what he has to meet.” In Botcher v. Berry, 6 Mont. 448, this court, in a case similar to the one at bar, held that allegations in the answer that a certain assignment was fraudulent, and that the possession of the property involved never passed from the assignor to the plaintiff, presented material issues, and that it was error to strike them out of the pleading. In Feeney v. Howard, 79 Cal. 529; 12 Am. St. Rep. 162, the court says: “The facts constituting fraud must be averred in cases of constructive as well as of actual fraud.” (See, also, Golson v. Dunlap, 73 Cal. 164; Burt v. Wilson, 28 Cal. 638.)
The appellants maintain that the court erred in refusing their application for leave to amend their answer in these respects so that the testimony of George Bickle could be introduced. We repeat our criticism of the unsatisfactory condition of the transcript, and are compelled to say that it does not appear that any amendments were ever prepared or submitted to the court below, or that good cause was shown therefor. We find no error in the record, and the judgment is affirmed, with costs.
