Oleson v. Newell ( 1866 )

By the Court

Berry, J.

This is an action of “claim and delivery.” The amended answer was, we take it, a substitute for tbe original answer, and after it was allowed to be filed, tbe only answer in the case. By its silence, if not otherwise, this amended answer admits the plaintiff’s property in the colt, and it expressly admits the unauthorized and wrongful detention. These admissions were orally reiterated upon the trial in open court. Notwithstanding 'the property had been returned to the plaintiff, he was entitled under this state of facts to a verdict, and judgment determining the right of property to be in him, and awarding him at least nominal damages. The offer to allow judgment, even if it had been in proper form, could only affect the costs and not the plaintiff’s right to a judgment. But the offer obviously failed to come up to the requirements of the statute regulating that subject. Pub. Stat., p. 626, sec. 8. It did not propose to allow judgment to be taken adjudging the title of the property in question, and that was the main matter in litigation. It was therefore, we think, ineffectual for any purpose. Upon the face of the record then, and without reference to the mistaken direction given to the jury by the court below, the judgment is clearly erroneous, and must be reversed, and the case remanded for a new trial.