29 P. 97 (Idaho 1892), Blackfoot Stock Company v. Delamue

Citation:29 P. 97, 3 Idaho 291
Opinion Judge:HUSTON, J.
Party Name:BLACKFOOT STOCK COMPANY v. DELAMUE
Attorney:Hawley & Reeves, for Appellant. T. M. Stewart, for Respondent.
Judge Panel:HUSTON, J. Sullivan, C. J., concurs. Morgan, J., took no part in the hearing or decision of this case. Sullivan, C. J., concurs.
Case Date:February 08, 1892
Court:Supreme Court of Idaho
 
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Page 97

29 P. 97 (Idaho 1892)

3 Idaho 291

BLACKFOOT STOCK COMPANY

v.

DELAMUE

Supreme Court of Idaho

February 8, 1892

CLAIM AND DELIVERY-AGISTER'S LIEN-VERDICT.-1. In an action of claim and delivery, where neither the ownership or value of the property is put in issue, but defendant claims a lien upon the property (cattle) for the care and keeping of the same under a contract with plaintiff, a verdict that "defendant recover of and from the plaintiff the sum of $679.50 for keeping and care of the cattle mentioned in the complaint, and that defendant have a lien on said cattle until said amount is paid," is sufficient after judgment under the statutes of Idaho.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed, with costs.

Hawley & Reeves, for Appellant.

In actions of replevin, a counterclaim cannot be pleaded by defendant or considered by the court. (Lovensohn v. Ward, 45 Cal. 8; Dole v. McGraw, 71 Mich. 106, 38 N.W. 686; Fairman v. Fluck, 5 Watts, 516; Stow v. Yarwood, 14 Ill. 424; Keaggy v. Hite, 12 Ill. 101.) The counterclaim must have existed at the commencement of the action. (Gannon v. Dougherty, 41 Cal. 661; Jeffreys v. Hancock, 57 Cal. 646; Lyon v. Petty, 65 Cal. 323, 4 P. 103.)

T. M. Stewart, for Respondent.

The provision in action for claim and delivery for alternative judgment, for return or value, is made for the benefit of the defendant, and he alone can take advantage of its omission. (Cobbey on Replevin, 1106, 1108; Boley v. Griswold, 20 Wall. 486; Sweeney v. Lomme, 22 Wall. 208.) A verdict for one party is sufficient to warrant judgment that he was entitled to possession. (Newlien v. Reed, 30 Iowa 496.) Defendant admitted that plaintiff was the owner of the cattle. In such case defendant is entitled to judgment for value of his special interest. (Cobbey on Replevin, 1126; Warner v. Hunt, 30 Wis. 200; Knudson v. Gieson, 38 Iowa 234.) Error will be disregarded unless it affects substantial rights of appellant or operates prejudicially to his interest. (Cobbey on Replevin, 1105; Barney v. Brannan, 51 Conn. 175; Marix v. Franke, 9 Kan. 132.)

HUSTON, J. Sullivan, C. J., concurs. Morgan, J., took no part in the hearing or decision of this case.

OPINION

[3 Idaho 292] HUSTON, J.

On the tenth day of November, 1889, the plaintiff entered into a contract in writing with defendant, by which the plaintiff agreed to and did deliver to defendant the...

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