Stahley Land & Livestock Co. v. Beckstead

BeaRD, Chief Justice. , This is an action in replevin brought by the plaintiff -in error against the defendants in error to recover the posses [175] sion of certain sheep. The trial was to the court without a jury resulting in a judgment against the plaintiff. It brings the ease here on error. One of the errors assigned in the motion for a new trial is the overruling of a demurrer to the answer; but we fail to find any demurrer in the record, or any reference thereto, or ruling thereon, in any part of the record. At the close of plaintiff’s evidence in chief its counsel objected to the introduction of any evidence on behalf of defendants on the ground that the answer was a negative pregnant and presented no issue. The record recites that the ruling on that objection was reserved by the court; and no direct ruling seems to have been made, but as the court admitted the evidence offered on behalf of defendants we assume that the objection was overruled, and therefore we will decide the point. It is alleged in the petition, “That plaintiff is the owner of, and entitled to the possession of about two hundred head of sheep, more or less, all of said sheep being earmarked with a crop on the right ear and an underhalf on the left ear. That defendants unlawfully, wilfully, maliciously and wantonly detain possession of the said sheep from plaintiff, and refuse to deliver possession thereof to plaintiff. ’ ’ The answer is as follows: ‘ ‘ Come now the above named defendants and answering the petition of the plaintiff herein say that they deny that the plaintiff is the owner of, or entitled to the possession of any of the sheep mentioned in said petition, or that the defendants or either of them unlawfully, or wilfully, or maliciously, or wantonly detain possession of said sheep or any of them from the plaintiff.” The answer contains no denial of the defendants possession of the sheep, but it does deny that plaintiff was either the owner, or entitled to the possession of them. The plaintiff based its right to possession upon ownership, and the answer distinctly, separately and not conjunctively denied the ownership or right of possession by plaintiffs. The gist of the action was unlawful detention. Plaintiff averred the different maimers in which it claimed the de [176] fendants wrongfully kept it out of possession; proof of any one of whicli would have entitled it to recover. Defendants specifically denied that it detained the sheep in either manner. The answer throughout is in the disjunctive. Had it been pleaded in the conjunctive there would have been much force to counsels’ contention. The general and well recognized rule is that conjunctive denials of conjunctive allegations are insufficient to put in issue any one of the allegations thus denied. And the converse of the rule is equally true, that the disjunctive denial of conjunctive allegations is not a negative pregnant.' Numerous decisions supporting the rule above stated will be found in the notes to Drennen v. Williams, Ann. Cas. 1917 A. 664, also 31 Cyc. 205. Por the reasons above stated the objection to the introduction of evidence by the defendants was not well taken. The only other question discussed or relied upon by counsel for plaintiff in error is that the judgment is not sustained by the evidence. It is earnestly contended and at great length that the undisputed evidence supports plaintiff’s contention. We have carefully read the entire evidence and find it in substantial conflict. Scarcely any two-witnesses agree on the material questions in the case, and some of the testimony is quite unsatisfactory. It would be of no service to quote at length from the testimony. It ap* pears that during the spring of 1916, each of the parties was ranging and herding a band of sheep in the same locality, and that sometime between March 25 and April 10, 1916, plaintiff missed from its band about 210 sheep. That inquiry was made of the person in charge of defendants’ sheep if they had picked up any strays, and wms informed that they had not. That plaintiff made no effort to look in defendants’ band for their missing sheep until nearly a year thereafter, although it had opportunity to do so at the time and also at the shearing pens some time later. One of plaintiff’s witnesses testified that defendants’ band of sheep was the only herd other than plaintiff’s in that vicinity, and the only herd to- possibly pick up its lost sheep and [177] would be the natural place to look for them. It also appears that during the late winter and spring of 1916,' defendants lost from their.herd in the neighborhood of 100 head of sheep. There is much conflict in the testimony as to the grade of the sheep of the respective parties, and to earmarks and brands. The testimony on behalf of defendants is that they did not pick up any of plaintiff’s sheep and had none of them in their herd. The evidence as to the identity of the sheep claimed by plaintiff is in substantial conflict. Being satisfied that there is such a conflict in the evidence and that there is sufficient evidence in the record to sustain the judgment under the well settled rule that in such case the appellate court will not set aside the verdict of a jury or the findings of the trial court, this court will not reverse a judgment on the ground of insufficiency of the evidence unless there is an entire lack of substantial and credible evidence to support it. The trial judge saw and heard the witnesses who testified, had the opportunity to observe their manner and demeanor while so doing, and was in a much better position to determine the weight to be given to the testimony of each, and to arrive at a just conclusion as to the facts established by the evidence than we are from reading the testimony. Counsel for plaintiff in error close their brief as follows: “Justitia plurimum, pos-sit callo cadente.” That we try to do in so far as our ability will permit. In response we might say of counsel: “Ghacun tire de son cote.” And it is right that they should do so. The burden rested upon the plaintiff to prove its case by a preponderance of the evidence. That, in the opinion of the trial court, it failed to do, and we see no substantial reason for setting aside that finding. The judgment of the district court is affirmed. Affirmed. Pottee, J. and Tidball, District Judge, concur. Hon. V. J. Tidball, Judge of the Second District Court, was called in and sat in place of Blydenburgh, J., who was unable to sit. . .