Richardson v. Steele

9 Neb. 483

• Court: Nebraska Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinion

Cobb J.

Whatever may have been the law formerly, or maj be now, in those states which have not materially departed from the common law system of pleading, it must be considered as settled both in this state and in Ohio, whose code and practice we have in great measure followed, that in replevin a general denial puts in issue every material allegation of the petition,- and under it the defendant may give evidence of any special matter which amounts to a defense to the plaintiff’s cause of action. School District No. 2 of Merrick Co. v. Shoemaker, 5 Neb., 36. Creighton, Adm'r, etc., v. Newton, Id., 100. Hedman v. Anderson, 8 Id., 180. Ferrell v. Humphrey, 12 Ohio Rpts., 113. Oaks v. Wyatt, 10 Id., 344.

It follows, therefore, that the district court erred in ruling out the testimony offered by plaintiff in error to show by the witness, Dimick, and his own testimony, that said Dimick was the owner of the gun in controversy at the time of the commencement of said suit. As the other errors complained of depended in great part upon this one, it is not deemed necessary to pass upon them.

The judgment of the district court is reversed and a new trial granted.

Reversed and remanded.