Simpson v. Remington, 59 P. 360

Simpson v. Remington

59 P. 360 | Idaho | 1899

SULLIVAN, J.

— This is an action supplemental to execution, and brought, by order of the court, under the provisions of section 4510 of the Revised Statutes; at least, the allegations of the complaint would indicate that it was brought under the provisions of said section. The defendant,' who is the appellant here, filed a general demurrer to the complaint, which was overruled. The appellant then answered, and • attempted to deny, on information and belief, that the execution mentioned in the second paragraph of the complaint had been returned unsatisfied, and denied the other allegations of the complaint. The suit was tried by the court and a jury, and verdict and judgment returned and entered in favor of the plaintiff for $540 and costs of suit. This appeal is from the judgment and order denying a new trial.

The appellant assigns as error the overruling of the demurrer to the complaint. After a careful consideration of the complaint, we conclude that it states a cause of action, and that it was not error to overrule the demurrer.

A motion for a nonsuit was made at the close of plaintiff’s evidence, and overruled, which overruling is -assigned as error. "We think plaintiff’s evidence makes a prima facie case, and the court did not err in denying the motion for nonsuit.

*683It is contended by the appellant tbat this action was brought under the provisions of section 4510 of the Bevised Statutes, and is an action supplemental to execution, while the respondent claims that it is an action brought under the provisions of section 4309 of the Bevised Statutes. However this may be, the complaint states a cause of action under the provisions of section 451Q;, of the Bevised Statutes. It alleges the issuance of an execution, and its return nulla 'bona, and the answer attempts to deny that allegation on information and belief. Such a denial is not permitted, where, by a mere inspection of public records, the defendant may have obtained the knowledge as to whether an execution had been issued and returned. The allegations of the issuance of the execution, and its return nulla bona, not being denied by the answer, were admitted and taken as true. This relieved the plaintiff of proving said allegations on the trial.

The overruling of appellant’s motion for a new trial is assigned as error, and the point urged is that the evidence is insufficient to justify the verdict. We have examined the evidence with care, and, as the jury is the judge of the credibility of the witnesses and the weight to he given to the evidence, we are not disposed to disturb the verdict. The testimony of the plaintiff appears quite satisfactory, while much of that of the appellant is equivocating, unintelligible, and most unsatisfactory. Facts that the appellant should have known and testified to fairly and squarely he did not recollect or could not remember, and, instead of having his books of account at hand from which to refresh his memory, they were at the city of Tacoma, Washington. A careful examination of the testimony convinces us that the jury arrived at the verdict on the issues before them on conflicting evidence, and, under well-settled rules, we are not authorized to disturb it. The judgment must be sustained, with costs in favor of the respondent.

Huston, G. J., and Quarles, J., concur.