Conner v. Knott
| Decision Date | 04 March 1896 |
| Citation | 66 N.W. 461,8 S.D. 304 |
| Parties | CONNER v. KNOTT. |
| Court | South Dakota Supreme Court |
Under a general denial in an action in claim and delivery against a sheriff, the defendant may show that the goods in controversy are the property of a third person, and that his possession is rightful, by virtue of a writ of attachment under which said property was seized.
Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.
Action by Jessie F. Conner against George A. Knott. Judgment for plaintiff. Defendant appeals. Reversed.Joe Kirby, for appellant. Winsor & Kittredge, for respondent.
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 new 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 property is not wrongfully detained, by proving title in himself or in a stranger. Agricultural Works v. Young (S. D.) 62 N. W. 432;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 controversy are the property of a third person, held by defendant, as sheriff,...
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