67 Neb. 255 | Neb. | 1903
Tbis action was a suit in replevin for three bogs alleged to have been tbe property of tbe plaintiff. Tbe petition was in tbe ordinary form. Tbe defendant, instead of availing himself of tbe ordinary method of pleading in replevin, by filing a general denial, pleaded specially, alleging that at tbe time of tbe commencement of tbe action be was rightfully in possession of tbe property in dispute; that he is tbe owner of certain cultivated lands (describing them) , a large part of which was at tbe time the action accrued in growing corn; that tbe bogs claimed by tbe plaintiff were trespassing upon bis said premises, damaging and destroying tbe corn, to bis injury in tbe sum of $10, when they were taken up and impounded by him. Tbe answer then sets out tbe provisions of tbe herd law, under which defendant claimed a lien on tbe animals, and alleges that two hours after be had taken tbe animals up, and before be bad bad time to ascertain tbe owner and serve notice, as required by tbe statute, tbe plaintiff instituted tbe replevin action and took tbe property under process in said suit
While it is the general and approved practice in this state for a defendant in a replevin action to interpose his defenses under a general denial, yet this method of pleading is not compulsory upon the defendant. If he desires to plead specifically his defenses, he may do so; in which event the ordinary rules of pleading will be applied to his answer. Westover v. Vandoran, 29 Nebr., 652. Consequently we must treat the answer of defendant filed in this case as we would an answer in any other civil action, and determine whether or not any sufficient defense was pleaded to plaintiff’s cause of action.
At common law the owner of live stock was bound, at his peril, to keep his stock within his own enclosures, and was liable for injuries committed by them while trespassing upon the lands of others, and such stock were liable to be impounded damage-feasant by the owner of the lands on which they were found trespassing; hence, if the common-law liability against stock trespassing upon the premises of others exists in this state, it is self-assertive that the answer in the case at bar did state a good defense to the cause of action. Section 1, article 3, chapter 2, Compiled Statutes (Annotated Statutes, sec. 3128), commonly known as the “Herd Law,” provides, in substance, that owners of cattle, horses, mules, swine and sheep in this state shall be liable for damages done by such stock upon the cultivated lands in this state, as herein
It is claimed by counsel for defendant in error that the provisions of sections 3, 4, 5 and 6 (3130, 3131, 3132 and 3133) of this act, which have been quoted in substance, are contrary to the provisions of the constitution of the state of Nebraska and to the fourteenth amendment to the constitution of the United States, in permitting the talcing of property without due process of law. It is also urged against these provisions that they
In the first place, the provisions of these sections do not prescribe an exclusive, but, rather, a cumulative remedy, for recovering damages caused by trespassing stock, and there is nothing in any section of the act that prevents the owner of the stock from having his rights determined by a court of competent jurisdiction. • Section 3 (3130), above quoted, is but a reasonable provision under which the party damaged may make his lien effective; and the primary requirement of that section is that he shall serve notice on the owner of property, when found in the county, and that in his notice he shall state the amount of damages which he claims, and that he shall name an arbitrator to whom he is willing to submit the question of fixing the damages. This section leaves it entirely optional with the owner of the stock whether he will name an arbitrator or not. Section 4 (3131) simply provides that if after receipt of the notice the owner of the property refuses for forty-eight hours to either appoint an arbitrator or pay the amount of damages claimed, then the injured party may proceed in his absence, and file proof of the notice and amount of damages claimed with a justice of the peace in the county where the damages have been sustained. The provisions of section 5 (3132) are not compulsory upon either of the parties. This section simply points out a method of arbitration by agreement, of which the interested parties may, if they desire, avail themselves. Section 6 (3133) provides that where an arbitration has been had, either party dissatisfied with the award of the arbitrators may appeal from the judgment of the justice with which such award has been filed, as in any other case before a justice of the peace. So there is nothing in any of these sections that compels the owner of property to submit his cause to arbitration
It follows from this course of reasoning that the learned trial judge erred in sustaining the demurrer to defendant’s answer, and we therefore recommend that the judgment of the lower court be reversed, and the cause remanded for further proceedings.
For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings.
REVERSED AND REMANDED.