5 Mont. 498 | Mont. | 1885
This is an action of claim and.delivery, and involves the ownership and right.of possession to six certain oxen, described in the complaint. The plaintiffs allege title and the wrongful taking of said property from their possession by the defendant. The defendant denies the_ title and possession of plaintiffs, alleges title and possession in a third person, and justifies his seizure and possession of the property as sheriff of the county,' under and by virtue of writs of attachment lawfully issued in actions by such third person.
The cause was tried to the court, and there were findings of fact to the effect that the defendant is entitled to the possession of the property; that at the commencement of the action the said property was delivered to the plaintiffs, who now have possession of the same; and that the property is of the value of $450. Thereupon it was ordered that the defendant have judgment against the plaintiffs for the return of the property, or, in case a return thereof cannot be had, for the sum of $450, the value thereof, and for costs of suit. The appellants attack this judgment upon the ground that the same is not au
The complaint supports the judgment, and the findings do not contradict the pleadings. In an action of claim and delivery of personal property, where there is an issue as to the title and right of possession and a finding in favor of the defendant, a judgment for the return of the property follows as a matter of course, even if the complaint does not contain a formal prayer for a return thereof. The fact of ownership and the right of possession justifies a judgment for the return of the property. This is not in conflict with the case of Gould v. Scannell, 13 Cal. 431, relied on by appellants, in which it is declared that the judgment of return is in the nature of a cross judgment, and there must be some appropriate averments in the pleadings to put in issue the facts upon which the relief is given. Of course, the answer must contain sufficient averments of fact to authorize the relief awarded. An averment of title and right of possession in the defendant supports a j udgment for return of the property. The vital question in such a case is, who is the owner
If the answer states facts as to the ownership or right of possession, sufficient to justify a return, and the evidence warrants it, a judgment of return will be awarded. Lewis v. Buck, 7 Minn. 105. The averment of title of the defendant, or a plea setting up ownership in a third person, averring a right of possession, with a formal traverse of the plaintiff’s rights, is sufficient to justify a judgment for the return of the property. Wells on Rep. sec. 189.
If, therefore, a judgment for return of the property is awarded, as a matter of cour.se, where the right of property is put in issue by the defendant, and the finding is in his favor, it follows that a finding that, at the commencement of the action, the property was delivered to
Judgment affirmed, with costs.