Conner v. Knott

• Decision Date: 04 March 1896
• Citation: 8 S.D. 304,66 N.W. 461
• Parties: CONNER, Plaintiff and respondent, v. KNOTT, Defendant and appellant.
• Court: South Dakota Supreme Court

8 S.D. 304

66 N.W. 461

CONNER, Plaintiff and respondent,

v.

KNOTT, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha county, SD Hon. Jos. W. Jones, Judge Reversed Joe Kirby, Sioux Falls, SD Attorneys for appellant. Winsor & Kittredge, Sioux Falls, SD Attorneys for respondent. Opinion filed Mar. 4, 1896

FULLER, J.

Claiming to be the owner of certain household effects, including a piano, mentioned in the complaint, and alleged to have been wrongfully taken and detained by the defendant plaintiff brings this action, in claim and delivery, to recover the immediate possession thereof. Under the answer, which is, in effect, a general denial, and after the defendant had introduced evidence tending to show that the property in question belonged to C. J. Conner, the husband of plaintiff, counsel for appellant attempted to justify the seizure and detention thereof by the defendant sheriff under a warrant of attachment fair upon its face, and directed against the property of said C. J. Conner. Upon the theory that justifying evidence of the seizure, possession and retention of the property by the sheriff by virtue of the writ was not within the issues, nor admissible under a general denial, all of said evidence was excluded, and the ruling of the court thereon is assigned as error.

The trial resulted in a verdict upon all the issues against the defendant, in plaintiff’s favor, and the defendant appeals from a judgment, entered thereon, and from an order overruling a motion for a new trial. As the above ruling will require a trial, and in view of the disposition of courts to allow amendments in the interest of justice, an assignment of error, relating to a ruling upon what appears to be a valid objection to the introduction of any evidence under the complaint, will receive no attention. While it is well settled, in replevin at common law, that an officer, in order to justify the seizure of property claimed by or found in the possession of a stranger to the writ, must plead the specific facts upon which he bases his special property or right to possession, he may, according to the code system, under a general denial, show that his possession of the property is rightful, by virtue of legal process under which the same was seized, or he may show that the same was not wrongfully detained, by proving title in himself or in a stranger. Pitts Agr. Works v. Young,(1895); Schulenberg v. Harriman, 21 Wall. 44. In Missouri it was held that “where, in such a proceeding, defendant makes a general denial of title in plaintiff, he may justify under legal process against the rightful owner.” Bosse v. Thomas, 3 Mo. App. 472: “In an action’ in replevin the defendant may show, under the general issue, that the goods in...