McIntosh Livestock Co. v. Buffington

• Decision Date: 17 July 1923
• Parties: MCINTOSH LIVESTOCK CO. v. BUFFINGTON ET AL.
• Court: Oregon Supreme Court

217 P. 635

108 Or. 358

MCINTOSH LIVESTOCK CO. v. BUFFINGTON ET AL.

Supreme Court of Oregon

July 17, 1923

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Replevin by the McIntosh Livestock Company against Leo Buffington and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded for further proceedings.

R. W. Swagler and W. H. Brooke, both of Ontario, N Eugene Brazie, of Boise, Idaho, on the brief), for appellant.

P. J Gallagher, of Ontario (Jas. S. Bogart, of Boise, Idaho, and J. W. McCulloch, of Ontario, on the brief), for respondents.

RAND J.

This action was brought to recover possession of a mixed band of ewes and wethers consisting of 548 head, together with the fleeces sheared therefrom.

The complaint alleged plaintiff's ownership and right to the immediate possession of the sheep and fleeces and that the same had been wrongfully taken from plaintiff's possession and detained by the defendant in Malheur county Or. After the commencement of the action the sheriff took 349 head of sheep and a like number of fleeces from the possession of the defendant and delivered the same to the plaintiff. The answer alleged that the defendant was the owner and entitled to the immediate possession of the 349 head of sheep and fleeces taken from defendant's possession by the sheriff and demanded judgment for the return of the property or for the value thereof in case a return could not be had. The defendant had verdict and judgment, and plaintiff appealed.

Plaintiff contends: (1) That because the defendant denied, on information and belief, plaintiff's ownership and right to the immediate possession of the sheep mentioned and described in the complaint, which was a matter peculiarly within the knowledge of the defendant, the denials were insufficient and amounted to an admission of plaintiff's ownership and right to the immediate possession of the sheep; and (2) that because the denials contained in the answer consist largely of literal denials or denials in the language of the complaint, they are mere negative pregnants and therefore amount to an admission of the allegations of the complaint. From this it is argued that the denials of the answer, being insufficient to present an issue upon plaintiff's ownership and right to the immediate possession of the property mentioned in the complaint, defendant's affirmative allegations of ownership and right to the possession of the sheep and fleeces described in the answer is of no avail, and that the answer therefore was not sufficient to entitle the defendant to a return of the property or to sustain the verdict or to warrant a judgment in defendant's favor.

Where the facts are presumptively within the knowledge of the party pleading, a denial by such party on information and belief as to such facts is insufficient, and such defective denial may be stricken out on motion. Mill's Estate, 40 Or. 424, 433, 67 P. 107. And where a party in his pleading makes two utterly inconsistent and contradictory statements, one being a direct and unqualified admission of a fact and the other amounting to a denial of the same fact, the admission will be given effect and the denial will be disregarded. Maxwell v. Bolles, 28 Or. 1, 41 P. 661; Veasey v. Humphreys, 27 Or. 515, 520, 41 P. 8.

But so far as it appears from the pleadings, the plaintiff could have been the owner and entitled to the immediate possession of the particular 548 head of sheep and fleeces mentioned and described in the complaint and at the same time the defendant could have been the owner and entitled to the immediate possession of the 349 head of sheep and fleeces mentioned and described in his answer. The number of the sheep claimed was not the same and the alleged earmarks upon plaintiff's sheep were of so many different kinds that earmarks similar to one or more of them might have been rightfully in use by the defendant. Hence the plaintiff, in its complaint, and the defendant, in his answer, may have been referring to two entirely different bands of sheep. If so, plaintiff's ownership and right to the possession of the sheep mentioned in the complaint was not presumptively within the knowledge of the defendant. By the verdict, the jury found that the plaintiff was not the owner nor entitled to the possession of the particular sheep taken from defendant's possession, and from this it follows that defendant's denial on information and belief as to plaintiff's ownership and right to the possession of the sheep mentioned in the complaint was in respect to a matter not presumptively within the knowledge of the defendant and concerning which he had a right to deny on information and belief.

A negative pregnant is a form of negative expression that implies or carries with it an affirmative. Bouvier's Law Dictionary. It is a denial in the words of the allegation which it seeks to deny and its fault lies in the ambiguity it creates, as where a party charged in a pleading with unlawfully taking a thing denies that he unlawfully took it, thereby admitting that he did take it, but denying that he took it unlawfully. It is therefore insufficient as a denial to raise an issue. Such denials "are virtual admissions of the truth of the allegations they were intended to deny." Moser v. Jenkins, 5 Or. 447, 449; McCormick Machine Co. v. Hovey, 36 Or. 259, 59 P. 189; Whitney Co. v. Smith, 63 Or. 187, 193, 126 P. 1000. As such denials amount to admissions, the answer, so far as it contained negative pregnants, was defective and was subject to any proper motion or objection that the plaintiff might desire to make.

The jurisdiction of this court is confined to a revision of the final decisions of the circuit courts and except as enlarged by article 7, § 2b of the Constitution, conferring original jurisdiction upon it in mandamus, quo warranto, and habeas corpus proceedings, it is not a court of original jurisdiction. Hence, upon appeal from a judgment in an action at law this court, in the exercise of its appellate powers, is confined to the determination of questions which arise either upon an error apparent upon the face of the record or upon an exception taken at the trial to a decision of the circuit court, upon a matter of law which is material and affects the substantial rights of the parties. Except when the complaint fails to state facts sufficient to constitute a cause of action, or where the court has no jurisdiction of the defendant or of the subject-matter of the action, to which objection may be raised for the first time upon appeal, this court will not pass upon a question which was not presented to and did not become the duty of the circuit court to decide. Applying this principle to the instant case, the record discloses that no demurrer or motion to strike or to make more definite and certain or for judgment on the pleadings or for nonsuit or for a ...