57 P. 310 | Idaho | 1899
— This is an action for the wrongful taking and detention of certain personal property. It appears from
Four errors are assigned. The first is to the effect that the court erred in sustaining the demurrer of plaintiff. The trial court sustained said demurrer, on the ground that a constable cannot execute a writ of execution issued out of a probate court. Under section 1882 of the Eevised Statutes, a ministerial officer may justify in the execution of process regular on its face, and issued by competent authority. (See, also, Pecotte v. Oliver, 2 Idaho, 251, 10 Pac. 302; Roth v. Duvall, 1 Idaho, 149; Hallett v. Parrish, 5 Idaho, 496, 51 Pac. 109.) Under section 2090 of the Eevised Statutes, constables must execute, serve, and return process, and are governed by the same laws as the sheriff. (Eev. Stats., sec. 2091.) Under section 4742 of the Eevised Statutes, the probate court is authorized to issue an execution addressed to a constable. Said section declares that executions issued out of probate courts of this state must run to
The second error assigned is that the court erred in sustaining the motion for judgment on the pleadings. The decision of the motion last above referred to virtually sustains the counsel for appellant in the error now under consideration. If the defendant’s separate defense was a valid one, the plaintiff was not entitled to judgment on the pleadings. Nor do we think he was entitled to judgment on the pleadings under the specific denials contained in the answer. The material allegations of the complaint were denied by the answer. When that condition exists, the court is not authorized to enter judgment on the pleadings. Evidence must be heard in order to determine the facts in issue. In the case at bar, the plaintiff demands damages in the sum of fifty dollars. The defendant denies the allegation for damages. The court erred in entering judgment for damages without hearing any testimony upon that issue.
The decision of the second assigned error disposes of the third and fourth assignments in favor of the appellant.
It is contended that the complaint shows an attempted sale of personal property without a change of possession, and is therefore fraudulent and void, under the provisions of section 3021 of the Revised Statutes. (Harkness v. Smith, 3 Idaho, 321, 28 Pac. 423; Hallett v. Parrish, 5 Idaho, 496, 51 Pac.
It is contended by appellant that said complaint is insufficient, because it does not allege a demand for the return of said property before this action was commenced. There is nothing in this contention. This is not a suit for recovery of certain specific property. It is an action in tort, and the record