Hickey v. Breen

• Citation: 40 Mont. 368
• Parties: HICKEY et al. v. BREEN.
• Decision Date: 29 January 1910
• Court: Montana Supreme Court

40 Mont. 368

HICKEY et al.

v.BREEN.

Supreme Court of Montana.

Jan. 29, 1910.

Appeal from District Court, Granite County; Geo. B. Winston, Judge.

Action of replevin by John and James Hickey against Peter Breen. Plaintiffs had judgment, from which, and an order denying a new trial, defendant appeals. Reversed.

Wingfield L. Brown, Edwin S. Booth, J. H. Duffy, and S. T. Hogevoll, for appellant. Geo. A. Maywood, for respondents.

HOLLOWAY, J.

This is an appeal by the defendant from a judgment in favor of the plaintiffs, and from an order denying his motion for a new trial. The action is in claim and delivery, and the complaint is in the usual form. Paragraph 2 reads as follows: “(2) That on said 12th day of July, 1908, at the county of Granite, in the state of Montana, the defendant wrongfully, and without consent of the plaintiffs, took said bay mare from the possession of the plaintiffs, and ever since has so wrongfully held possession of the same.” The answer denies generally all the allegations of the complaint. In Kaufman v. Cooper, 38 Mont. 6, 98 Pac. 504, this court announced the rule, which is recognized generally, that: “In statutory actions, often called replevin, to recover the possession of personal property, wherein the plaintiff relies on general allegations of ownership and right to possession, a general denial puts in issue both the right of property and the right of possession, as well as all other material allegations in the complaint, and under it the defendant may give in evidence any special matters which will defeat the plaintiff's claim.” The verdict returned in this case is as follows: “We, the jury in the above-entitled action, find our verdict in this action that the plaintiffs in this action were, at the time of the commencement of this action, and are now, the owners of and entitled to the immediate possession of the bay mare described in plaintiffs' complaint, and are entitled to the possession and return of said bay mare or the sum of $200, the value of said mare, in case a return thereof cannot be had.” In Woods v. Latta, 35 Mont. 9, 88 Pac. 402, this court stated the rule, which is elementary, that in claim and delivery “the verdict should in terms dispose of all the issues submitted to the jury.” In Gallick v. Bordeaux, 31 Mont. 328, 78 Pac. 583, in speaking of the action in claim and delivery, we said: “The gist of the action is the ownership or right of possession in the plaintiff, and the wrongful seizure and detention by defendants, and the primary relief sought is the return of the property in specie. In order that the complaint state a cause of action, it must not only allege ownership or right of possession in the plaintiff, but it must allege the wrongful seizure and detention of it by the defendants. The action lies only against the party in possession.” And this was in effect reiterated in Frank v. Symons, 35 Mont. 56, 88 Pac. 561, where it is said: “The burden of proof was therefore upon the plaintiff to show that at the time of the commencement of the action he was the owner or entitled to the possession of the property, and that defendant wrongfully took the same from him.” The allegations of paragraph 2 of the complaint above were necessary in order to state a cause of action (Gallick v. Bordeaux, above); and, having been put in issue by the answer, we are confronted with the inquiry: Is the verdict sufficient to sustain a judgment in favor of plaintiffs?

In 18 Encyclopedia of Pleading & Practice, 568, the general rule is stated as follows: “In an action of replevin the verdict must pass upon and be responsive to all the issues presented by the pleadings, as otherwise no valid judgment can be rendered thereon.” In Hamilton v. Murray, 29 Mont. 80, 74 Pac. 75, this court said: “A verdict is bad if it varies from the issues in a substantial matter, or if it find only a part of that which is in issue. The reason of the rule is obvious; it results from the nature and the end of the pleadings. Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue; and, although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the...