B. & M. R. R. Co. v. Bear

Reese, J. Plaintiff in error has filed a motion for rehearing, accompanied by an elaborate brief, which it is deemed proper to notice. As stated in the original opinion, the answers of the defendants, contain the allegations that the property “ was not unlawfully detained by him from said plaintiff, nor was the said plaintiff entitled to the immediate possession •of the same, as claimed in said petition,” etc. To this answer a demurrer was filed. This demurrer seeks to attack only a part of the answer, which is designated as the second •count or part, which seeks to set up a lien under the salvage act of 1883. One of the answers referred to by the demurrer is stated in paragraphs; the other is not. The one demurrer is made to both answers. But the last paragraph of the demurrer is as follows : “ The said answer and counts where specified do not state facts sufficient to show any right to said property on the part of defendants.” This must be considered as attacking the whole answer. The language above quoted from the answer must be treated as a denial of the allegations of the plaintiff’s petition. Although in the affirmative form it is a direct traverse of the essential allegations of the petition, viz., the unlawful detention and plaintiff’s right of possession. This was sufficient to defeat plaintiff’s recovery, without proof. It [495] would put the plaintiff to the proof of the averments of the petition thus attacked. Ruth v. Ruth, 12 Neb., 594. The demurrer was properly overruled. Lewis v. Coulter, 10 O. S., 451. Trustees v. Odlin, 8 Id., 293. Moore v. Kepner, 7 Neb., 291. Mansfield v. Avery, ante p. 478. The fact that a right under the alleged lien was not well pleaded by the answer can make no difference, as such plea was not necessary. The same defense could have been' made under the denial as under the allegation of special defenses, had they been properly alleged; the plaintiff being required to recover on the strength of his own title. Richardson v. Steele, 9 Neb., 486. Hedman v. Anderson, 8 Neb., 184. Cool v. Roche, 15 Id., 27. The motion for rehearing is denied. Judgment accordingly. The other judges concur.,