Lindsay v. Wyatt

• Decision Date: 01 January 1878
• Citation: 1 Idaho 738
• Parties: Paradine Lindsay, Appellant, v. Anneas Wyatt, Respondent.
• Court: Idaho Supreme Court

1 Idaho 738

Paradine Lindsay, Appellant, v. Anneas Wyatt, Respondent.

Supreme Court of Idaho

January 1, 1878

CLAIM AND DELIVERY-PLEADING-NEW MATTER.-When, in an action in claim and delivery for the recovery of personal property, the complaint alleges ownership and a right to the possession the answer denying these allegations, it is not error in the court to allow the defendant to prove his right to the possession by virtue of a lien to defeat a recovery by plaintiff. The establishment of such right by defendant is not new matter required to be affirmatively pleaded.

APPEAL from the Second Judicial District, Ada County.

Huston & Gray, for the Appellant. F. E. Ensign, for the Respondent.

PRICKETT J.,

delivered the opinion.

HOLLISTER C. J., and CLARK, J., concurring.

Action of claim and delivery for the recovery of a mare. The complaint alleges that at the commencement of the action, the plaintiff was the owner and entitled to the possession of the property therein described, and that defendant, after demand by plaintiff for its possession, unlawfully detained the same. The answer denies that plaintiff was the owner, or was entitled to the possession of the property; or that the defendant ever unlawfully withheld or detained it from the plaintiff. The cause was tried, and a judgment rendered for the defendant.

The case is brought to this court upon a bill of exceptions, from which it appears that upon the trial, the defendant while

being examined as a witness in his own behalf, was asked the following question: "Have you had the care and keeping of the mare in question since the same was foaled; if so, how long have you had the mare in keeping, and what is it worth?" To this question plaintiff objected, as being irrelevant and inadmissible under the pleadings, because there was no special property or claim for keeping, alleged in the answer. The defendant's counsel stated that the object of the inquiry was to establish a right of possession and a special property to the mare in question to be in the defendant under a lien for keeping the same. The court overruled the objection and plaintiff excepted. The answer to the question does not appear in the record.

It is urged by the plaintiff and appellant, that in order to entitle the defendant to prove a claim to the property or its possession under or by virtue of a lien, he should have set up such claim, and alleged such lien, affirmatively, in his answer. That it is new matter which must be pleaded, in order to admit...