48 Colo. 423 | Colo. | 1910
delivered the opinion of the court:
Plaintiff in error commenced an action in replevin against defendant in error for the possession
The complaint was an ordinary one in replevin, and alleged, in substance, that at the time of the commencement of the action plaintiff was the owner, and entitled to the immediate possession of the animals in controversy (two Hereford bulls), branded in a manner specified; that defendant wrongfully took them from the range and from the possession of plaintiff, and has ever since wrongfully and unjustly detained them, and now detains them, without the consent of plaintiff, to his damage in the sum of $100.00, and that before the commencement of this action he demanded of defendant the return thereof, “but defendant refuses to surrender same and is now in possession thereof without any title or claim of any kind. ’ ’
The first defense is as follows: “First. The defendant denies that the plaintiff was entitled to the immediate possession of two Hereford Bulls (branded as described in complaint) or that he was the owner thereof at the time of the commencement of this suit, or that he was such owner or entitled to the possession of said bulls, at any time since on or about the 21st day of July, 1906.
“Second. The defendant admits that he took
“Third. Tbe defendant admits that be refuses to surrender said bulls to tbe plaintiff. Denies that be hasn’t any title thereto or that be bas not a claim and title to said bulls. ’ ’
This defense, counsel for plaintiff contends, not only admits tbe ownership of tbe bulls in controversy, but expressly admits tbe taking of tbe bulls from tbe range, and tbe refusal to surrender them to tbe plaintiff, and hence, it is argued, does not tender an issue, and is an implied admission of tbe allegations of tbe complaint. It is claimed that a denial in ipsis verbis not only fails to raise an issue, but is an admission of tbe allegations of tbe pleadings to which it is directed. This proposition cannot apply to tbe defense under' consideration, unless it is tbe third paragraph, and possibly some portions of tbe second, but this infirmity does not extend to tbe denials embraced in the first paragraph.
Tbe action appears to have been, commenced about March 2, 1907. Plaintiff alleges that be was tbe owner and entitled to tbe possession of tbe animals in controversy at that time. Tbe defendant denies that plaintiff was tbe owner or entitled to tbe possession of tbe animals at any time since on or about tbe 21st day of July, 1906, a date anterior to tbe commencement of tbe action. This denial certainly puts in issue tbe averments of ownership and
It is urged that the second defense 'is evasive and contradictory, and does not tender any material issue. In as much as the first defense tendered a material issue, the sufficiency of the second defense in this respect is of no moment. Each defense stands by itself, and must be tested by what it contains. A judgment cannot be rendered on the pleadings on motion of the plaintiff where the answer contains a denial of the material allegations of the complaint, even though the answer sets up a special defense separately stated, which admits the allegations of the complaint by failure to deny.—Nudd v. Thompson, 34 Cal. 39; Amador Co. v. Butterfield, 51 Cal. 526.
Our attention is directed to §§ 4266-7-8, Mills ’ Ann. Stats., relating to bills of sale for stock sold, penalty for violation, and the duty of the purchaser to show bill of sale. "We do not see how these sections have any application to the case at bar. Possibly they might have in connection with the facts set up in the second defense, but, be that as it may, it does not appear, so far as advised, that on the question of the .right of plaintiff to a judgment on the pleadings, in so far as the first defense is involved, they have any application.
The judgment of the district court is affirmed.
Affirmed.
Chief Justice Steele and Mr. Justice Hill concur.