Straiian, J.
This action was commenced in the justice’s court for Western Precinct, in Umatilla County, on the 15th day of November, 1884, to recover one twelve-foot Hodge Oregon Header, of the value of $200, and $50 damages for the wrongful detention. The plaintiff recovered a judgment before the justice, from which judgment an appeal was taken to the circuit court; and at the November term, 1885, said appeal was, by order of said court, dismissed ; from which last named judgment an appeal was taken; and upon such, appeal this court reversed the judgment of the circuit court (13 Or. 435), and remanded the cause for trial. Upon such trial being had before a jury, the plaintiff again had judgment, from which judgment this appeal is taken.
The complaint states in substance, that heretofore, in Umatilla County, Oregon, to wit, on the 3d day of November, 1884, plaintiff was and now is the owner of and entitled to tlie immediate possession of the following article of personal property, to wit, one twelve-foot Hodge Oregon Header, of the value of $200 ; that on or about the 3d day of November, 1884, defendants wrongfully and unlawfully took possession of said header, against the will of the plaintiff, and still wrongfully and unlawfully hold the possession of said header, to the damage of the plaintiff in the sum of fifty dollars ; that before the [432]*432commencement of this action, to wit, on the 14th day of November, 1884, plaintiff made a demand in writing of It. W. Donaca, one of the above named defendants, to return said header; but to return the same the defendants refused, and still refuse, to do. Then follows the usual prayer for judgment in such case. The defendants’ answer is substantially as follows :
Come now the above named defendants, and answering the plaintiff’s complaint herein filed:
Deny, that heretofore, in Umatilla County, Oregon, or in any other county or state, or any other place, on the third day of November, 1884, or at any other time, or at all, the jfiaintiff was, or is now, the owner of, or entitled to the immediate or any possesion at all of the property described in his complaint herein filed; defendants deny that on or about the third day of November, 1884, or at any other time, or at all, the defendants, or either of them, wrongfully or unlawfully took possession of said property described in plaintiff’s complaint as one twelve-foot Hodge Oregon Header; or that they, or either of them, wrongfully or unlawfully hold possession of said header. Defendants deny that said header is worth, or is of the value of, two hundred dollars, or any greater sum than one hundred dollars; defendants deny that by the alleged wrongful and unlawful taking and detention of said header the plaintiff is damaged in the sum of fifty dollars, or any sum at all.
The defendants aver that they have no knowledge or information sufficient to form a belief as to whether, before the commencement of this action, to wit, on the 14th day of November, 1884, or at any other time, or at all, the plaintiff made a demand, in writing or otherwise, of R. W. Donaca, one of the above named defendants, to return said header ; and they therefore deny the same.
Wherefore, the defendants demand judgment against the plaintiff for their costs and disbursements.
Upon the trial, many exceptions were taken by the appellant, but we will only notice such as we deem material. There was but one exception taken to the evidence offered on the part [433]*433of the plaintiff. Plaintiff’s counsel asked a witness where the property in controversy was at the time the action was commenced. The objection was, that there was no allegation in the complaint as to where the header was, or that it was in Umatilla County ; but the objection was not well taken, and the court committed no error in allowing the witness to answer. .The action is local, and must be prosecuted in the county where the property is detained. This is the common law rule, as well as the plain requirement of the statute. (Civil Code, Sec. 41.) The complaint alleges the wrongful taking in Umatilla County. It is an argumentative statement of a material fact. It does, in some sense, tend to fix the situs of this property in the county about the time the action was commenced. It is not direct and certain, it is true ; nor would the complaint be good if attacked by demurrer; but in the absence of any objections to the pleading on this ground, the court did not err in admitting evidence to prove that said property was in Umatilla County when the action was commenced.
The court gave to the jury the following instruction, to which appellants excepted: “ If you believe and find that Wurtsbaugh was the attorney of Knapp, Burrill & Co., or their agent, and he induced the plaintiff to remove his said mortgage (from the files of the county clerk), then, as to Knapp, Burrill & Co., the lien of the plaintiff’s mortgage was not destroyed by the act of the plaintiff’s removing.”
Before considering this assignment of error, a correct understanding of the issues to be tried, and what facts are admitted by the answer, is necessary. All of the material allegations of the complaint are denied, except that the answer admits defendants took the property ; but they deny that said taking was wrongful or unlawful. So, also, the answer admits that the defendants hold possession of said header, but they deny that such holding of possession is wrongful or unlawful. This is the legal effect of the pleading as it stands. The defendants set up no claim to the property in controversy, nor any right whatever to detain the same, nor do they allege any excuse. [434]*434or justification for the admitted taking. Under this state of the pleadings, it is difficult to perceive on what ground the appellants can be heard to complain of the rulings of the court in their favor, outside of the issues to be tried. It may be conceded that some of the instructions given by the court would have been open to the objections urged against them by the appellants, if the pleadings had presented the issues which they sought to try ; but where the pleadings are entirely silent as to those facts, and the instructions complained of were given in the interest of the appellants and outside of the issues, we cannot reverse the judgment on the complaint of the party in whose favor the error was committed. We have more than once announced, during the present term, that a party must recover, if at all, according to the facts stated in his pleading. In Boardman v. Griffin, 52 Ind. 101, the rule is thus stated: In such cases,” i. e., where the cause is tried by the court, “ as well as in all others, the parties must recover upon the allegations of the pleadings. They must recover secundum allegata et probata, or not at all. It must be so in the nature of things, so long as our mode of administering justice prevails. It would be folly to require the plaintiff to state his cause of action, and the defendant to disclose his ground of defense, if, on the trial, either or both might abandon such grounds, and recover upon others which are substantially different from those alleged.”
So, in Terry v. Shively, 64 Ind. 106, it is said: “ In the trial of the cause, and in determining the proper verdict, both the court and jury were bound and limited by the allegations in the pleadings, and the issues thereby presented.”
So, also, in Mossman v. Bender, 80 Mo.
Free access — add to your briefcase to read the full text and ask questions with AI
Straiian, J.
This action was commenced in the justice’s court for Western Precinct, in Umatilla County, on the 15th day of November, 1884, to recover one twelve-foot Hodge Oregon Header, of the value of $200, and $50 damages for the wrongful detention. The plaintiff recovered a judgment before the justice, from which judgment an appeal was taken to the circuit court; and at the November term, 1885, said appeal was, by order of said court, dismissed ; from which last named judgment an appeal was taken; and upon such, appeal this court reversed the judgment of the circuit court (13 Or. 435), and remanded the cause for trial. Upon such trial being had before a jury, the plaintiff again had judgment, from which judgment this appeal is taken.
The complaint states in substance, that heretofore, in Umatilla County, Oregon, to wit, on the 3d day of November, 1884, plaintiff was and now is the owner of and entitled to tlie immediate possession of the following article of personal property, to wit, one twelve-foot Hodge Oregon Header, of the value of $200 ; that on or about the 3d day of November, 1884, defendants wrongfully and unlawfully took possession of said header, against the will of the plaintiff, and still wrongfully and unlawfully hold the possession of said header, to the damage of the plaintiff in the sum of fifty dollars ; that before the [432]*432commencement of this action, to wit, on the 14th day of November, 1884, plaintiff made a demand in writing of It. W. Donaca, one of the above named defendants, to return said header; but to return the same the defendants refused, and still refuse, to do. Then follows the usual prayer for judgment in such case. The defendants’ answer is substantially as follows :
Come now the above named defendants, and answering the plaintiff’s complaint herein filed:
Deny, that heretofore, in Umatilla County, Oregon, or in any other county or state, or any other place, on the third day of November, 1884, or at any other time, or at all, the jfiaintiff was, or is now, the owner of, or entitled to the immediate or any possesion at all of the property described in his complaint herein filed; defendants deny that on or about the third day of November, 1884, or at any other time, or at all, the defendants, or either of them, wrongfully or unlawfully took possession of said property described in plaintiff’s complaint as one twelve-foot Hodge Oregon Header; or that they, or either of them, wrongfully or unlawfully hold possession of said header. Defendants deny that said header is worth, or is of the value of, two hundred dollars, or any greater sum than one hundred dollars; defendants deny that by the alleged wrongful and unlawful taking and detention of said header the plaintiff is damaged in the sum of fifty dollars, or any sum at all.
The defendants aver that they have no knowledge or information sufficient to form a belief as to whether, before the commencement of this action, to wit, on the 14th day of November, 1884, or at any other time, or at all, the plaintiff made a demand, in writing or otherwise, of R. W. Donaca, one of the above named defendants, to return said header ; and they therefore deny the same.
Wherefore, the defendants demand judgment against the plaintiff for their costs and disbursements.
Upon the trial, many exceptions were taken by the appellant, but we will only notice such as we deem material. There was but one exception taken to the evidence offered on the part [433]*433of the plaintiff. Plaintiff’s counsel asked a witness where the property in controversy was at the time the action was commenced. The objection was, that there was no allegation in the complaint as to where the header was, or that it was in Umatilla County ; but the objection was not well taken, and the court committed no error in allowing the witness to answer. .The action is local, and must be prosecuted in the county where the property is detained. This is the common law rule, as well as the plain requirement of the statute. (Civil Code, Sec. 41.) The complaint alleges the wrongful taking in Umatilla County. It is an argumentative statement of a material fact. It does, in some sense, tend to fix the situs of this property in the county about the time the action was commenced. It is not direct and certain, it is true ; nor would the complaint be good if attacked by demurrer; but in the absence of any objections to the pleading on this ground, the court did not err in admitting evidence to prove that said property was in Umatilla County when the action was commenced.
The court gave to the jury the following instruction, to which appellants excepted: “ If you believe and find that Wurtsbaugh was the attorney of Knapp, Burrill & Co., or their agent, and he induced the plaintiff to remove his said mortgage (from the files of the county clerk), then, as to Knapp, Burrill & Co., the lien of the plaintiff’s mortgage was not destroyed by the act of the plaintiff’s removing.”
Before considering this assignment of error, a correct understanding of the issues to be tried, and what facts are admitted by the answer, is necessary. All of the material allegations of the complaint are denied, except that the answer admits defendants took the property ; but they deny that said taking was wrongful or unlawful. So, also, the answer admits that the defendants hold possession of said header, but they deny that such holding of possession is wrongful or unlawful. This is the legal effect of the pleading as it stands. The defendants set up no claim to the property in controversy, nor any right whatever to detain the same, nor do they allege any excuse. [434]*434or justification for the admitted taking. Under this state of the pleadings, it is difficult to perceive on what ground the appellants can be heard to complain of the rulings of the court in their favor, outside of the issues to be tried. It may be conceded that some of the instructions given by the court would have been open to the objections urged against them by the appellants, if the pleadings had presented the issues which they sought to try ; but where the pleadings are entirely silent as to those facts, and the instructions complained of were given in the interest of the appellants and outside of the issues, we cannot reverse the judgment on the complaint of the party in whose favor the error was committed. We have more than once announced, during the present term, that a party must recover, if at all, according to the facts stated in his pleading. In Boardman v. Griffin, 52 Ind. 101, the rule is thus stated: In such cases,” i. e., where the cause is tried by the court, “ as well as in all others, the parties must recover upon the allegations of the pleadings. They must recover secundum allegata et probata, or not at all. It must be so in the nature of things, so long as our mode of administering justice prevails. It would be folly to require the plaintiff to state his cause of action, and the defendant to disclose his ground of defense, if, on the trial, either or both might abandon such grounds, and recover upon others which are substantially different from those alleged.”
So, in Terry v. Shively, 64 Ind. 106, it is said: “ In the trial of the cause, and in determining the proper verdict, both the court and jury were bound and limited by the allegations in the pleadings, and the issues thereby presented.”
So, also, in Mossman v. Bender, 80 Mo. 579, it was held that instructions based on a defense not raised by the answer, or on facts stated therein not constituting a defense, were properly refused.
There was, therefore, no error in the instruction that injured the defendants, or of which they can complain. And for the like reasons we eannot examine the various instructions given by the court.in relation to the official character of Donaca, or [435]*435tlie process under which he acted. These instructions were all outside of the issues, but they were in the interest of the defendants, who cannot complain because the court did not go further in their behalf. The sixth instruction was excepted to, and is as follows :
“ 6. If the jury find that the machine was the property of the plaintiff, either general or special, and that it was wrongfully taken from his possession by the defendants, within Weston precinct, this county and state, you should find for plaintiff.”
No specific objection to this instruction was suggested upon the argument, and we think that under the facts disclosed by the bill of exceptions the instruction was correct.
The seventh instruction, also objected to, is as follows:
“ 7. And if the jury find that the property was that of plaintiff, and that it was taken by defendant Donaca, and that a demand for the return of the same was made on defendant Donaca while the property was in his possession, and that he failed to return the same, and you also find that the property was within Weston precinct, Umatilla County, Oregon, at the time this action was commenced, you should find for plaintiff.”
This instruction was more favorable to the defendants than they had a right to ask or expect. If the property was the property of the plaintiff, and it was taken by the defendants Donaca and Cox, as admitted by the answer, and such taking was wrongful, then no demand was necessary. And the same remark is applicable to the tenth instruction, which is as follows :
“ 10. If you find that the property was the property of the plaintiff Moorhouse, on November 3d, 1884, and that the defendants took it; that demand was made on defendants for its return, and that they failed to deliver it; you must then deter- • mine the value of the property, and the damages sustained by the plaintiff by reason of the taking, and award him a verdict therefor.”
In addition to this, some objection was made on the argument by counsel for appellants, on the ground that there was a [436]*436slight discrepancy between the date specified in this instruction and the day the action was commenced; but we think, in the absence of any claim of right whatever on the part of the defendants, that this objection cannot prevail. Besides, if it is shown that the plaintiff owned this particular property a few days before this action commenced, this court will not presume that such ownership had ceased at the time the action was commenced. Error will not be presumed, but must be made to affirmatively appear.
The only instruction asked on the part of the defendants, to which an exception was taken, was the following:
“The jury are instructed that the evidence fails to establish any cause of action against the defendant E. R. Cox, and they must, therefore, return a verdict for said defendant Cox.” Substantially, all the evidence offered upon the trial is in the bill of exceptions, and in such case we might review the action of the court in refusing this instruction. But in this case both a joint taking and a joint detention are admitted by the answer, and no excuse or justification is alleged. Under this state of the pleadings, there certainly was some evidence before the jury which enabled them to find the verdict against Cox.
It is assigned for error, that the form of the verdict is insufficient to authorize a judgment. Omitting the formal parts, the verdict is as follows : “We, the jury in the above entitled cause, find for the plaintiff that he is entitled to the possession of the header mentioned in the complaint, and that the value thereof is $140.”
Under the facts disclosed by this record, the verdict finds all the facts required by section 211 of the Civil Code. The property had not been delivered to the plaintiff, nor did the defendants, by their answer, claim a return thereof. In such case, if the verdict is in favor of the plaintiff, the jury shall assess the value of the property. The verdict is silent as to damages, but this is an omission of which the defendants cannot complain. It did them no injury.
Two juries have found in favor of the plaintiff, and there is no reason to believe that the defendants have not had a fair [437]*437trial. In any view they were allowed a wider latitude in making their defense than they were entitled to under the pleadings. We therefore affirm the judgment.