No. 2547 | Wash. | Apr 25, 1898
Lead Opinion
The opinion of the court was delivered by
Respondent commenced an action against appellant, claiming delivery of personal property of the value of $200, and also to recover tbe sum of $150 damages for detention of tbe same. Tbe complaint alleged tbe incorporation of appellant and that appellant wrongfully and unlawfully detained tbe property from tbe possession of respondent, and that possession thereof bad been demanded. A demand for judgment was made for tbe possession of tbe property and tbe sum of $150 damages. Tbe answer denied that respondent was entitled to possession of tbe property or that appellant wrongfully detained tbe
Two assignments of error are made; that the verdict is contrary to law, and that the court erred in entering judgment on the verdict. The record does not disclose that appellant urged the particular errors in the superior court relied on here. It has frequently been observed in this court that objections not going to the jurisdiction, in order to be available on appeal as a ground for reversal, must be presented and ruled upon by the trial court. Rawson v. Ellsworth, 18 Wash. 668 (43 P. 934" court="Wash." date_filed="1896-02-10" href="https://app.midpage.ai/document/rawson-v-ellsworth-4722851?utm_source=webapp" opinion_id="4722851">43 Pac. 934); Price v. Scott,
“ Where there is a defect, imperfection, or omission in any pleading, whether in substance or form, which would have constituted a fatal objection on demurrer, yet if the issue joined is such as necessarily required on trial, proof of the fact so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would have directed the jury to- give, or the jury would have rendered, the verdict found, such defect, imperfection, or omission is cured by the verdict.” 28 Am. & Eng. Enc. Law, 417.
Where the sufficiency of a pleading is not questioned until after the verdict the same degree of strictness will not be applied as when questioned by demurrer, and a pleading will be good after verdict if it contains allegations from which every fact necessary to maintain the action or establish the defense may be fairly inferred. Though material facts are entirely omitted, yet if they are necessarily concomitants of the material facts alleged, so that in their findings the jury must have found the facts omitted, the defect is cured by verdict.
Where the carrier demands a sum in excess of the sum due for freight charges, the consignee need not tender any sum before bringing suit. Adams v. Clark, 9 Cush. 215 (57 Am. Dec. 41); Isham v. Greenham, 1 Handy, 357" court="Oh. Super. Ct., Cinci." date_filed="1854-11-15" href="https://app.midpage.ai/document/isham-v-greenham-8507866?utm_source=webapp" opinion_id="8507866">1 Handy, 357; 8 Am. & Eng. Enc. Law, 978.
If the carrier has negligently delayed delivery of goods or otherwise subjected itself to liability for damages in
The objections to the pleading should have been ruled upon by the superior court. The judgment is affirmed.
Scott, C. J., and Dunbar and Andebs, JJ., concur.
Concurrence Opinion
I concur in the result. Upon the pleadings in this case, I think the defendant would have been entitled to judgment. The reply admits that the sum of $75 was lawfully due defendant for freight charges upon the property replevied, and, until this was paid or legal tender was made, defendant was entitled to retain possession. But defendant did not see fit to avail itself of this defect in the pleadings, and the record contains no bill of exceptions, statement of facts, or motion for a new trial, blot a ruling of the trial court is assigned as error, nor does it appear that any objection to the pleadings or to the evidence was made at the trial. Under these circumstances, we are bound to presume, in support of the judgment of the superior court, that evidence without which it could not legally have been rendered was duly given at the trial. Error must be affirmatively shown, and defects or irregularities not affecting the jurisdiction cannot be raised for the first time in the appellate court.