13 Utah 178 | Utah | 1896
The defendant in this case, as sheriff of Salt Lake county, under a writ of attachment, levied upon, seized,, and afterwards, under execution, sold certain personal property. The plaintiff, claiming to be the owner thereof, and that 'he was wrongfully deprived of its possession, brought this suit in replevin to recover its possession, or the value thereof. The jury found that he was the owner and entitled to the possession, and the value of the property, with accrued interest, to be $3,252.72. After judgment was entered in accordance with the verdict, and a motion for a new trial overruled, the defendant prosecuted his appeal to this court. The main question to be determined is whether, under the pleadings, as shown by the record, the court erred in its ruling on the admission of evidence relating to the subject of fraud. It appears that the property in question originally belonged to the Utah Paint & Oil Company, and that it was by that company transferred and delivered to the plaintiff, by deed of assignment for the benefit of its creditors, and was go in his possession, by virtue of said deed, at the time of
Counsel for the appellant, while admitting that no fraud is alleged in the answer, insists that the court erred in excluding the proof offered, because the plaintiff alleged ownership generally, without disclosing any particular -source of title, and the defendant, in his answer, denied specifically all the allegations of the complaint. This contention seems to be supported by the weight of authority, and might avail the appellant, if his answer were otherwise sufficient. As a general rule, where a party to an action relies upon fraud he must plead it. In
Counsel for the appellant also insist that the court erred in excluding at the trial a proposed amendment to the answer, in which fraud was alleged. An examination pji.the proposed amendment shows that it failed to supply any averment in justification, and therefore the court’s refusal to permit it was proper.
Counsel further maintain that the verdict was defective because it did not find separately the value of each article of the property seized. It is shown by the evidence that the defendant had disposed of all the property. He was therefore liable for all of it, and no injury could result to him because of the failure to find the value of each article. Even if there was a technical defect in the verdict, the defendant, not having objected to it at the time when it was received, cannot mow be heard to complain because of such defect.
The objection that the verdict was not rendered by a unanimous jury presents no open question in this court.
Other questions have been raised, and, while they have not escaped our attention, still we do not deem them of sufficient importance to require separate discussion. We perceive no reversible error in the-record. The judgment is affirmed.