Bancroft-Whitney Co. v. Mayfield

Opinion by AMES, C. The plaintiff brought an action of replevin against the defendants, alleging that they were, respectively, the constable and deputy constable of Tulsa township; that the plaintiff wras the owner of certain law books, being the American Decisions, the American Reports, and American State Reports and the Digests; that the defendants had wrongfully taken the property. The defendants’ answer contained, first, a general denial; and, second, as an affirmative defense, that they had taken the books from one Ben. F. Kesterson, that he was the owner thereof, and that they had taken them under certain writs of attachment, issued out of a justice court, and that the property was owned by the said Kesterson. For its reply the’plaintiff"alleged, first, a general denial; and, second, that the attachment proceedings were invalid. The case was tried to a court and jury, and judgment rendered for the defendants. Nothing is brought to this court except a transcript, no evidence being preserved, and the only question argued is that the answer does not state a defense. This question does not *536 appear to have been raised in the trial court. No demurrer was filed to it, and no motion appears in the transcript for judgment on the pleadings, but, waiving that point, it is sufficient to say that a plaintiff must recover upon his own title, and that the general denial was sufficient to put the plaintiff upon proof, and therefore the answer stated a defense. The judgment of the trial court should therefore be affirmed. By the Court: It is so ordered.