Gila Valley, Globe, & Northern Railroad v. Gila County

71 P. 913 | Ariz. | 1903

DAVIS, J.

This was an action in replevin, brought by the appellee, as plaintiff in the court below, against the Gila Valley, Globe, and Northern Railway Company, to recover from the possession of said company five crates of iron vault furniture. The amended complaint set forth that the plaintiff was the owner and entitled to the possession of said property, that the same was wrongfully detained by the defendant company, that the actual value of said property was $448.10, and contained other averments which sufficiently met the requirements of the statute. To this amended complaint the defendant answered, pleading a general denial of each and every allegation thereof except that the defendant was a corporation. The answer also contained another defense, setting up special matter, which, in the view we take of the case, it will not be necessary to consider. The defendant only prayed judgment for its costs. The plaintiff interposed a general demurrer to the answer, which was sustained by the court, and leave granted the defendant to file an amended answer. Thereafter, the defendant having declined and refused to amend its answer, the plaintiff submitted a motion for a judgment in its favor on the pleadings, which motion was granted. It was thereupon “ordered and adjudged that the plaintiff have and recover from the defendant the personal property described in its complaint [description], and that plaintiff also recover from defendant its costs and disbursements, amounting to the sum of $22.76.” The defendant appeals from this judgment.

The appellant claims that the trial court erred (1) in sustaining the demurrer to the answer, and (2) in rendering judgment against the defendant on the pleadings. The demurrer was general to the entire answer; hence, if either defense was good, the ruling wag erroneous. This action, formerly termed “claim and delivery” in our statute, has been held to be only a modification of the common-law remedy of replevin. Carroll v. Byers, 4 Ariz. 158, 36 Pac. 499; Levy v. Leatherwood, 5 Ariz. 244, 52 Pac. 359. But the peculiar common-law pleadings in replevin do not exist under our practice. Where the code system of pleading prevails, the rule is almost universal that a general denial in a replevin ease puts in issue every fact stated in the complaint necessary to sustain the plaintiff’s cause of action. Glaser v. Clift, 10 Cal. 303; White v. Gemeny, 47 Kan. 741, 28 Pac. 1011, 27 Am. St. Rep. 320; Loomis v. Foster, 1 Mich. 165; Oester v. Sitlington, 115 Mo. 247, 21 S. W. 820; Aultman v. O’Dowd, 73 Minn. 58, 75 N. W. 756, 72 Am. St. Rep. 603; Aultman v. Stichler, 21 Neb. 72, 31 N. W. 241; Bailey v. Swain, 45 Ohio St. 657, 16 N. E. 370; Chamberlin v. Winn, 1 Wash. 501, 20 Pac. 780; Timp v. Dockham, 32 Wis. 146. And we find nothing in the requirements of our local procedure that would be inconsistent with the application of such rule. Unquestionably, therefore, since there was contained in the answer the defense of the general denial, the pleading, as a whole, could not be considered as obnoxious to a general demurrer. We think the court erred in sustaining the demurrer to the answer, and it follows, for the same reason, that the judgment rendered on the pleadings was also erroneous.

Counsel for the appellee has suggested the question of our jurisdiction to review this case on appeal. It is urged that, because the defendant failed to demand a return of the property, or to make any claim for damages, but only asked judgment for its costs, the amount involved in the appeal is less than one hundred dollars. Under the provisions of our replevin statute the defendant may, in his answer, demand a return of the property, and assert a claim of damages for the unlawful replevying thereof, but there would be no occasion for any such demand or claim unless the defendant was deprived of the possession of the property. In the case before us there is nothing in the record to show that the property was out of the defendant’s possession, and the form of the judgment would indicate that the possession thereof was not, at the time, in the plaintiff. The general denial in this case put in issue both the ownership and the right to the possession of the property, and, the case having apparently gone to judgment with the property in the defendant’s possession, the “matter in dispute” was necessarily the property itself, the value of which was alleged in the complaint at $448.10.

For the errors pointed out, the judgment will be reversed and the cause remanded for a new trial.

Kent, C. J., and Sloan, J., concur.