Pitts Agricultural Works v. Young

Citations

• 6 S.D. 557
• 62 N.W. 432
• 1895 S.D. LEXIS 153

Syllabus

<p>1. The general denial in actions of claim and delivery under the Code puts in issue not only the unlawful detention of the property by the defendant, but also the title and right of possession in the plaintiff; and under it the defendant may not only show that the plaintiff has no title or right to the possession, but, by way of establishing that fact, may prove title in himself or in a stranger. And, for the purpose of showing that he did not unlawfully detain the property, the defendant, under such denial, may prove that some other person was in the possession and held the same at the commencement of the action.</p> <p>2. When, however, the property is taken by the officer under his process, the presumption is that it was taken from the possession of the defendant, and this presumption can only be overcome by evidence on the part, of the defendant that he did not have the possession at the commencement'of the action.</p> <p>3. A verdict of a jury finding all the issues in favor of the defendant will . ordinarily be construed with reference to this presumption, and not as finding that the defendant was not in possession of the property at the commencement of the action.</p> <p>4. The rule seems to be well settled that when the defendant pleads property in himself or in a stranger, or he traverses the plaintiff’s right to the possession, if he prevails in the action he will be entitled to a judgment for the return of the property, or its value in case a return cannot be had.</p> <p>5. When a general objection is made at the trial to evidence offered that might have been obviated at the time had a specific objection been made to it, such a genei'al objection will not be considered by this court on appeal.</p> <p>(Syllabus by the court.</p>