Martin v. McLaughlin , 9 Colo. 153 ( 1886 )

Elbert, J.

The court properly overruled the plaintiff’s motion to strike the defendant’s answer from the files. The motion came too late, being interposed after the case had gone to trial. An additional ground is found in the statute providing for appeals from the county to district courts, which declares tha,t the proceedings in such case in the appellate court shall be de novo, and that the defendant, where judgment had been rendered by default, shall have the right to plead any and all defenses which he might have pleaded had the case originally been brought in the district court. Gen. St. § 500. As this statute gave the defendant a right to file his answer in the district court, notwithstanding his previous default in the county court, it was not necessary to ask and obtain leave of the court therefor.

The ruling of the court striking the plaintiff’s replication to the defendant’s answer from the pleadings is not assigned for error. We notice it only to say that a mistaken view of the effect of the ruling perhaps led to the erroneous result which we find. It will be seen that all of the material allegations of the complaint are put in issue by the denials of the answer. “The further defense,” as it is called in the answer, is largely a repetition in another form of matter already in issue. A replication was necessary only in so far as the answer alleged new matter, and this was all that stood admitted when the replication was stricken from the files. Whether the statutory notice was given by the defendant was one of the issues made by the averments of the complaint and the denials of the answer, and no replication wasmeeded to complete it.

We need not inquire into the sufficiency of the evidence to show that the defendant knew that the plaintiff was the owner and consignor of the goods and that he resided in Denver. The evidence shows clearly that he knew the consignee, and knew that he resided in and had a place of business in Leadville, the place of delivery. We are unable to find in the bill of exceptions any evidence showing that the defendant, prior to the sale of the plaintiff’s goods, gave to either the owner or consignee, or to the agent of either of them, the twenty-four hours’ notice required by the statute in a case of sale of perishable goods for charges, etc. There does not appear to have been any attempt or effort on the part of the defendant or his agents to comply with the statute in this respect. On the other hand, it appears from the evidence that the sale took place in less than twenty-four hours after the consignee refused to receive the goods.

The verdict is manifestly against the evidence, and for this reason the judgment of the court below must be reversed, and the cause remanded.

Reversed.