Pfeifer v. Hatton
| Decision Date | 14 February 1908 |
| Citation | 115 N.W. 191,17 N.D. 99 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Sargent County; Allen, J.
Action bye Frank J. Pfeifer against T. T. Hatton. Judgment for plaintiff, and defendant appeals.
Affirmed.
Affirmed, with costs to respondent.
O. S Sem, for appellant.
A pleading will not be stricken out as frivolous, if its character is doubtful. Catholicon Hot Springs v Ferguson, 67 N.W. 615; Stebbins v. Lardner, 48 N.W. 847; Sigmund v. Bank of Minot, 4 N.D. 164, 59 N.W. 966; Bank of Commerce v. Humphrey, 61 N.W. 444; Sifton v. Sifton, 65 N.W. 67; Northwestern Cordage Co. v. Galbraith, 70 N.W. 1048; Minn. Thresher Mfg. Co. v. Schaack, 74 N.W. 445.
Defense of mitigation of damages must be specifically pleaded. McKyring v. Bull, 16 N.Y. 304; Gjerstadengen v Hartzell, 79 N.W. 872; Kidder County v. Foye, 10 N.D. 424, 87 N.W. 984; Bohn Mfg. Co. v. Keenan, 89 N.W. 1009.
Rourke, Kvello & Adams, for respondent.
Pleas for mitigation are only pertinent to exemplary damages, or to disprove damages. Wandell v. Edwards, 25 Hun. 498; Gorton v. Keeler, 51 Barb. 475.
Verdict of sheriff's jury is no bar to a suit against the officer. Townsend v. Phillips, 10 Johns 96; Phillips v. Harris, 19 A.D. 166; Matheson v. Johnson, 92 N.W. 1083.
But one question is presented on this appeal, which is the correctness of an order made by the trial court striking out on motion a portion of the answer.
The action is in claim and delivery; the complaint being in the usual form. The defendant, who is a constable, seeks to justify his taking and detention of the property under an execution issued to him upon a judgment rendered in an action wherein one Tisdel was plaintiff and one Ben Pfeifer was defendant. The portion of the answer which was ordered stricken out, and the striking out of which constitutes the only basis for appellant's assignments of error, is as follows: "The defendant further alleges that after the said levy and prior to the 9th day of April, 1906, the plaintiff demanded of the defendant that a constable's jury be called and impaneled to try the right of property in the property described in the complaint, and that the defendant immediately complied with said demand, and that upon previous notice to plaintiff and the said Lewis Tisdel, he convened such jury before him at his office in De Lamere, in said county, on the 2d day of April, 1906, and then and there a trial was had before such jury duly impaneled and sworn; the plaintiff being present and represented by counsel, and the said Lewis Tisdel being present and represented by counsel, and evidence being adduced by both parties and the questions of right of property and possession thereof duly submitted to such jury for adjudication, and that after trial had, and after submitting same to the jury, said jury returned into court with verdict that at the time of the said levy said property was the property of Ben Pfeifer, and not the property of plaintiff, and that, upon such adjudication and verdict, the defendant retained the property until it was taken from him by the sheriff of Sargent county as aforesaid under the demand of plaintiff for a jury as aforesaid." We have duly considered appellant's argument in support of his contention that such ruling was error, and we are entirely clear that there is not merit in such contention. The facts alleged in said paragraph were wholly irrelevant to the issue involved, which was the right to the possession of the personal property at the time of the commencement of the action. Upon no theory can this paragraph be...
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