Greig v. Clement

Chief Justice Hayt delivered the opinion of the courL By the pleadings the official character of the defendant in error, Clement, was put in issue by direct allegation and positive denial. To maintain the plea of justification it was therefore incumbent upon the defendants to establish such official character. They having failed to introduce any proof in support thereof, the plaintiff undertook to prove affirmatively that Clement at the time of the levy was not a deputy sheriff of Garfield county, but the court in response to objections interposed by the defendants excluded all evidence upon this issue. This ruling was based upon the assumption that plaintiff had sued Clement in his capacity as deputy sheriff and was for this reason estopped from denying that he was such an officer. Thereupon plaintiff asked permission [171] to strike out the words “deputy sheriff” after Clement’s name in the caption of the amended complaint, this constituting the only reference in this pleading to the official character of the defendant. The motion was denied. To sustain the plea of justification it is admitted that the official character of Clement is material, but it is argued here, as in the district court that proof of such character was not necessary for the reason as it is claimed that plaintiff had sued him as deputy sheriff. The premise upon which the argument is founded is unsound. The fact that plaintiff in the caption o£ his complaint follows the name of this defendant by the words “ deputy sheriff ” does not make the action one against the defendant as deputy sheriff. The word as does not precede such official designation and in its absence the presumption is that he is sued as an individual and that the words “ deputy sheriff ” are merely deseriptio persone». Fryer v. Breeze, 16 Colo. 323. There is, as we have said, nothing in the body of the complaint to charge him in any official character whatever, and taking the answer and replication we find a distinct issue made upon the official character of this defendant. We have then in addition to the presumption arising from the omission of words showing that Clement is charged as deputy sheriff, which have been held necessary to indicate that the party is sued in an official capacity, a direct issue in the pleadings upon the very point in controversy, i. e., as to whether Clement in seizing the chattels was acting in an official capacity. This was material and essential to the plea of justification. In the absence of proof showing his official character the plea is not sustained. For this error the judgment must be reversed and the cause remanded. In view of a new trial we deem it necessary to notice a question of pleading raised by the record. This relates to what is termed an “additional answer.” Such a pleading is unknown to the code, but as the plaintiff without questioning the pleadings by motion or otherwise in the first instance, [172] joined issue thereon, the court properly held the issue thus made as one of the issues in the case. The other rulings complained of are not such as are likely to arise upon a new trial and need not be considered. Judgment reversed. Reversed.