192 P. 1056 | Wyo. | 1920
, This is an action in replevin brought by the plaintiff -in error against the defendants in error to recover the posses
One of the errors assigned in the motion for a new trial is the overruling of a demurrer to the answer; but we fail to find any demurrer in the record, or any reference thereto, or ruling thereon, in any part of the record. At the close of plaintiff’s evidence in chief its counsel objected to the introduction of any evidence on behalf of defendants on the ground that the answer was a negative pregnant and presented no issue. The record recites that the ruling on that objection was reserved by the court; and no direct ruling seems to have been made, but as the court admitted the evidence offered on behalf of defendants we assume that the objection was overruled, and therefore we will decide the point. It is alleged in the petition, “That plaintiff is the owner of, and entitled to the possession of about two hundred head of sheep, more or less, all of said sheep being earmarked with a crop on the right ear and an underhalf on the left ear. That defendants unlawfully, wilfully, maliciously and wantonly detain possession of the said sheep from plaintiff, and refuse to deliver possession thereof to plaintiff. ’ ’ The answer is as follows: ‘ ‘ Come now the above named defendants and answering the petition of the plaintiff herein say that they deny that the plaintiff is the owner of, or entitled to the possession of any of the sheep mentioned in said petition, or that the defendants or either of them unlawfully, or wilfully, or maliciously, or wantonly detain possession of said sheep or any of them from the plaintiff.” The answer contains no denial of the defendants possession of the sheep, but it does deny that plaintiff was either the owner, or entitled to the possession of them. The plaintiff based its right to possession upon ownership, and the answer distinctly, separately and not conjunctively denied the ownership or right of possession by plaintiffs. The gist of the action was unlawful detention. Plaintiff averred the different maimers in which it claimed the de
The only other question discussed or relied upon by counsel for plaintiff in error is that the judgment is not sustained by the evidence. It is earnestly contended and at great length that the undisputed evidence supports plaintiff’s contention. We have carefully read the entire evidence and find it in substantial conflict. Scarcely any two-witnesses agree on the material questions in the case, and some of the testimony is quite unsatisfactory. It would be of no service to quote at length from the testimony. It ap* pears that during the spring of 1916, each of the parties was ranging and herding a band of sheep in the same locality, and that sometime between March 25 and April 10, 1916, plaintiff missed from its band about 210 sheep. That inquiry was made of the person in charge of defendants’ sheep if they had picked up any strays, and wms informed that they had not. That plaintiff made no effort to look in defendants’ band for their missing sheep until nearly a year thereafter, although it had opportunity to do so at the time and also at the shearing pens some time later. One of plaintiff’s witnesses testified that defendants’ band of sheep was the only herd other than plaintiff’s in that vicinity, and the only herd to- possibly pick up its lost sheep and
Affirmed.