126 A. 333 | Conn. | 1924
The plaintiff claims that the pleadings in the replevin action were not of such a nature as to put in issue the question and amount of the damages recovered by Minnie Holtz as defendant therein, and that defendants' second defense in the present action does not contain allegations sufficient to show that the damages sought by her as defendant in the former action were considered and passed upon by the jury, or could properly be considered under the pleadings. The present defendants make the complaint, answer and counterclaim and the judgment-file in the replevin action part of their defense by reference, and these, in connection with the allegations of the answer, would seem fairly to set forth a defense of res adjudicata, and to show that the question of damages arising out of the replevy and retention of the automobile were fairly before the jury and determined by them. The counterclaim is in the form provided in the Practice Book for *420 the purpose of recovering damages by a defendant. There was no demurrer to it, nor was any motion made to make it more specific. The allegations, though general, afford a sufficient basis for the admission of evidence of damages arising from the replevy, and to sustain a verdict and judgment therefor. Section 6105 of the General Statutes, provides that where the right of possession of the property replevied is put in issue, "if the defendant in his answer by way of counterclaim claims damages for the replevin, he may give evidence of such damages; and judgment, . . . if for the defendant, shall be for a return of the property, and for his damages and costs." In the counterclaim in question, the defendant alleged ownership in herself and upon this plea she succeeded. If she was wrongfully deprived of the possession of her automobile, she was entitled to at least nominal damages. She was therefore entitled to give evidence as to the amount of damage, and in that regard an issue was properly before the jury.
Appellant contends that a mere claim for damages and demand for judgment does not constitute a counterclaim, citing New Idea Pattern Co. v. Whelan,
But plaintiff further contends that the record itself does not show that damages were in fact assessed in the replevin action. The judgment-file is founded upon a recital of the verdict rendered in the action, which was: *421
"In this case the jury finds the issues for the defendant Holtz on her counterclaim and therefore find that the defendant Holtz recover possession of the goods described in the declaration and one dollar damages"; also that "the court accepted said verdict." The judgment-file further adjudges to the defendant possession of the property and "one dollar damages." Taken in connection with what we have before said regarding the pleadings, this is conclusive that the issue of damages was litigated at the trial and considered by the jury and is a basis of the judgment by the court. The judgment-file is conclusive as to its contents until corrected. Sisk v. Meagher,
As sustaining his claim that an action on a replevin bond is maintainable, after judgment for return of property and damages of $1 in favor of a defendant in the replevin action, plaintiff's counsel relies uponGould v. Hayes,
There is no error.
In this opinion the other judges concurred.