6 S.D. 421 | S.D. | 1894
Appellant, as plaintiff, brought this action in claim and delivery against respondent, as sheriff, to recover a stock of goods, or its value, of which appellant claimed to be the owner, and as such entitled to the immediate possession. The answer admitted the taking, and justified under attachments issued to him, as such sheriff, against one Nancy J. Fulton, from whom it was alleged the property flaken was fraudulently, acquired by the plaintiff. The allegations of the answer will be more particularly noticed as we proceed. The plaintiff demurred to the answer on the grounds (1) that it does not state facts sufficient to constitute a defense; and (2) that it does not state facts sufficient to show that this plaintiff is es-topped from maintaining said action.” The court overruled the demurrer, and plaintiff appeals.
As the foundation of his right to recover this property, the plaintiff, in his complaint, alleged that ‘ ‘he is the owner, * * * and as such owner is entitled to the immediate possession, ” etc.; thus resting his cause of action upon his ownership, and resultant right to possession. His right to possession was expressly made to depend upon his ownership.. He thus distinctively negatived any right to possession, except “as such owner.” The answer specifically alleges “that the property described in the complaint, and so levied upon by the defendant as aforesaid, was at the time of said attachment and levy the property of the said Nancy J. Fulton, and not the property of the plaintiff, and that at the time of said levy as
As the action of the trial court in overruling the demurrer to the answer must be affirmed for the reasons already stated, it is not necessary to very carefully examine the particular objections appellant makes to the sufficieney of the statement of the affirmative defense. Most of the objections we'regard as unsubstantial. If any have merit they seem to be such' inadvertent omissions, not going to the merits of the controversy, as a trial court would ordinarily allow to be supplied by amendment on the trial.