2 Utah 433 | Utah | 1880
delivered the opinion of the court:
This action is for trespass upon real estate, expelling appellants therefrom, and cutting and carrying away grass and hay, The complaint alleged these acts to have been done on the 4th day of July, 1876, and no other day or date, is mentioned. The verdict and judgment were for respondents and the damages assessed at $450. The defendants below thereupon bring the case to this court.
It is assigned for error that the court below, over the objection of appellants, admitted evidence of the cutting of grass, and taking and carrying away hay on the 5th day or July, 1876, when the trespass was alleged to have taken place on the 4th of July, 1876, and was not laid for any other day.
The former doctrine was that such proof could not be admitted when the complaint contained no continuando nor any allegation of the trespass on “ divers other days.” This doctrine, however, is not consistent with the liberal rule required under our practice. The courts must see that substantial justice is done, and technical objections, not affecting the substantial rights of the parties, must be disregarded. Civil Pr. Act, §§ 70, 71; C. L. 1295, 1296.
The acts alleged to have taken place on the 4th July, seemed, according to the evidence, to have been continued into the 5th July, and the acts of the 5th July were merely the winding .up of the alleged trespass of the 4th July. The appellants could not have been misled to their prejudice by the wording of the complaint, and hence we can see no good reason for reversing the judgment for the alleged error referred to. Dubois v. Beaver, 25 N. Y. 123.
The next alleged error of the court was the exclusion of appellants’ evidence to controvert respondents’ possession of the premises, and the possession and ownership of the hay, and the giving of instruction to the jury that the amended answer
The answer, in express terms, denies that respondents either owned the property or were ever entitled to the possession, or were ever in possession of the said premises or any part thereof, prior to the 10th July, 1876. But in the new matter set up in the answer, the appellants allege possession in themselves and those under whom they claim ever since 1849, and that whilst appellants were so in possession, to-wit, on the 3d day of July, 1876, the respondents, against the will of the appellants entered upon the land and commenced to cut hay, and that said possession, “ so wrongfully taken ” by respondents, was the only possession respondents ever had prior to the 10th July, 1876. A defendant has a right to plead as many defenses as he may have if, when the answer is sworn to, they be not contradictory. The denials and the new matter here can stand together. If they be even inconsistent, the inconsistency is inferential and remote. The appellants allege possession in themselves at and prior to the time when respondents came upon the ground; that whilst they (appellants) were so in possession, respondents trespassed upon the ground. The new matter in effect asserts that respondents and not appellants were the trespassers.
The appellants offered to prove prior possession in themselves and that respondents did not have it. If this were shown, the action could not be maintained for the trespass. The evidence should have been admitted.
The judgment is reversed, and the cause remanded for further proceedings in the court below in accordance with this opinion.
