147 N.W. 82 | S.D. | 1914
Lead Opinion
A brief statement of the facts is necessary to an understanding of the questions presented on this appeal.
The plaintiff, a corporation, was operating a ferry as common carrier, across the Missouri river, at the town of LeBeau. The defendant railway company, was a common carrier, having its terminus at the town of LeBeau. A portion of its freight and passenger traffic originated on the opposite side of the river from LeBeau. To facilitate this traffic, the railway company entered into a contract with the ferry company for the maintenance of a ferry or pontoon transfer of its freight and passengers across the Missouri river, a-t that point, stipulating to pay plaintiff $10.50 per day for such service, when operated by ferry boat, and $7.00 per day for .pontoon service. The pontoon bridge, if installed, was to be furnished by the defendant railway company, the plaintiff company to be responsible for its safe maintenance, and contracting to take out the pontoon and deliver it on the bank of the river, at LeBeau, when ordered so to do by the superintendent of the railway company. In the fall of 1909, the railway company constructed a pile bridge across the east channel of the river, to an island or sand-bar. The plaintiff was the owner of the barge, anchor and hawser in dispute in this action, which w.ere alleged to have been borrowed by the defendant company and placed in. the pile bridge to fill a g-ap therein, and was so used in connection with "the bridge, until taken out by a sudden flow of ice in November of that year. The barge was carried down stream a short distance, and lodged on a bar. Unsuccessful attempts were made by employees of the defendant Company to pull it out on the bank. It was tied to the shore with lines and remained through the winter. When the ice went ou-t in the spring, the barge was carried down stream a mile or so, but was again caught and secured by a cable to a tree on the bank. Shortly afterwards, it was loosed from its moorings, carried down stream, and -broken up and destroyed. All these facts were known to the plaintiff -before
The allegations of the complaint, so far as material to the questions presented on this appeal, are as follows: III. “That on and prior to the 6th day of September, 1909, this plaintiff was the owner and in possession 'of a certain barge equipped with an anchor and hawser which barge, anchor and hawser were being used by the plaintiff on the Missouri river at a point near the town of BeBeau, Walworth county, and that -the same was then and there of the total value of $800.00. IV. That on or about the said 6th day of September, 1909, the defendant borrowed of and from the plaintiff, the said barge, anchor and -hawser to use 'by defendant in crossing some cattle from one side of the Missouri river to the other; that the said barge was then and there loaned by plaintiff to defendant, and defendant received the same to be used by defendant during - the fall of 1909, and then returned to plaintiff. V. That the defendant has failed and refused to return -said barge, anchor and hawser, or either of them to this plaintiff, and unlawfully detains the same from the plaintiff. VI. That the value of said property at the time the same was borrowed from plaintiff by defendant was the sum of $800.00. VII. That the plaintiff has been wrongfully deprived of the use of the said property during the season of 1910 and 1911, to its damage of $500.00; Wherefore, Plaintiff -prays judgment against the defendant for the return of the said property; and if the return thereof cannot be had, then that plaintiff have judgment against the defendant for the -sum of $800 with interest thereon at the rate of 7 per -cent, from September 6th, 1909, and for the sum of $500 -damages for the use of said property, together with the costs of this action.” The defendant by its answer pleaded the contract whereby plaintiff agreed to- install and operate the ferry across the Missouri river at BeBeau, for the accommodation of defendant’s freight and passenger traffic, and alleged in substance, that the barge was placed in the pile bridge at BeBeau, to facilitate -the carrying -out of plaintiff’s contract, and that said barge was never in the -possession of the -defendant. Defendant
At the close of the evidence, the defendant moved the court for direction of a verdict, on the following ground: “That this case is one in replevin or claim and delivery as it is called, and the relief demanded is for the return of certain specific property and damages for its detention and that the undisputed evidence shows that the property described in the complaint and sought to be recovered was not in the possession of the defendant at the time of the commencement of this action and for a considerable period prior thereto, and that the defendant could not answer to the writ sought by the plaintiff in this -action, and could not respond to the relief demanded and that the judgment on this account should be for the defendant with costs.” Before any ruling was made on this motion, the plaintiff moved the court for leave to amend the complaint, by striking- from- Par. 5 the words: “and unlawfully detains the same from -the plaintiff,” and to- insert in lieu thereof, the words “to plaintiff’s damage in the sum of $800”; to strike from the complaint, Par. 7, and to amend the prayer of the complaint to a demand for judgment for $800 with interest at 7 per cent, from September 6, 1909. Defendant’s counsel objected to the proposed amendment on the ground ‘'That the complaint alleges a cause of action for claim and delivery or replevin, and that the plaintiff, by its proposed amendment, is 'seeking to change such cause of action to an entirely different cause of action, to-wit: a cause of action for conversion; and that the defendant is surprised at this time, and is not prepared to try a cause of action against the defendant for conversion. That the defendant has presented no evidence to meet such cause of action at the trial and is not prepared to try such cause of action at this time; and that the court has no authority under the statute to grant such an amend-men at this time; and the further objection that such amendment would be immaterial.” The court denied defendant’s motion for a directed verdict, and granted plaintiff’s motion to amend the
The trial court -ruled that the amendment -merely co-nfonned the pleading to the ¡proof, after the evidence was all in, and denied defendant’s application, for the further reason -that the issues were not changed by the amendment allowed. These rulings of the trial -court present the only questions upon -this appeal. They are: First. Did the trial court err in refusing appellant’s motion for direction of a verdict, at the -close of the evidence? Second. Did the trial court err in permitting an amendment of the complaint and in denying the application for the continuance and leave to answer the amended -complaint? -Appellant’s motion for direction of a verdict was based on the theory that the action is in the nature of replevin; that the evidence conclusively shows that the property was not in defendant’s possession when the action was begun, of which fact plaintiff then had knowledge; that upon these facts, the action of replevin will not lie, and therefore defendant was entitled to direction -of a ver-d-ict.
Section 2337 of the Civil Code is as follows: “A person entitled to the immediate possession of specific personal property, may recover the -same in the -manner -provided by the Code -of Civil Procedure.” Under this section, the specific purpose of the action is the recovery -of immediate possession. In a default action, the plaintiff must plead such facts as are essential to- sustain an enforcible judgment for possession. The -complaint must state facts shown that at the commencement of the action, the property
In Vol. 3 Wait’s Practice, 606, the following rules are laid down as applicable under the New York Code of Civil Procedure, which is like our own. (Code Civ. Proc. §§ 31 x, 312). “The Code makes an important distinction as to the measure- of relief which may be granted to the plaintiff against a defendant who answers the complaint, and that which he may have against one who- makes default. In the latter case, relief granted cannot exceed that which the plaintiff has demanded in his complaint. * * * On the other hand, when the defendant puts in an answer, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. •* * * This provision of the Code is in conformity to the former equity practice where the complaint contained a general
In 2 Wait’s Practice, 331 (§ 2), it is said: “When the statement -of facts constituting a cause of action will support either of two actions, and it is doubtful which the pleader in-tended, the court will in some cases regard the form of the summons, and the demand for judgment, or relief, as in some degree evidencing the intent of the pleader. * * * (§ 3) Although a summons may be used' as an aid in- determining -the intent of the pleader, and although the demand for judgment will -be received as evidence of his conclusion as to the nature and extent of the relief to which he is entitled, still the court may disregard the summons, the demand for relief and the manifest intent of the pleader, when they are inharmonious with the facts alleged and proved on the trial. * * * The very object of the new system of pleading was to enable the court to give judgment according to the facts stated and proved, without reference to the form used or the legal conclusions adopted by the pleader.' * * * So the pleading will be construed according to the facts alleged, and not' according to -what the pleader intended to" allege.” * * *
The finding of the jury upon the controverted facts, was with the plaintiff. No reversible error appears in the record and the judgment is affirmed.
Concurrence Opinion
While I concur in the conclusion reached in the foregoing opinion, I am unable to concur in the construction placed upon plaintiff’s complaint. This pleading should be construed as against the plaintiff, and should be construed as setting