Smith v. Force , 31 Minn. 119 ( 1883 )

Gilfillan, C. J.

The complaint in this case is insufficient, because, being for a conversion, it alleges plaintiff’s ownership of the property in the present tense; that is, at the time of filing the complaint, and mot at the time of the conversion. But parties may at the trial waive -such defects, and, where they do so, and try the cause precisely as -though the proper allegations were in the pleading, it will be considered here as though such were the case. The parties so tried this •case. No objection was taken to evidence of plaintiff’s ownership before and at the time of the conversion, and such ownership and the •conversion were fully proved, there being no evidence to the contrary. The arrangement between the parties — that, if defendant insisted ■on taking the property in dispute, he might do so, and return it to plaintiff, if, on his writing to the department, it did not claim the ¡property as government property — was wholly without consideration, •and of no force as against a subsequent demand at any time by plaintiff for its delivery to him. On the evidence the plaintiff, ought to ■have had judgment.

The rule stated in Hinds v. Am. Exp. Co., 24 Minn. 95, that though there be no request to the justice to return the evidence upon an appeal on questions of law alone, the appellate court will consider the •evidence, if it affirmatively appear that the justice has returned it all, is sound; and, in view of the liberality with which proceedings before justices of the peace are construed, the certificate to the return of the evidence was sufficient to show-that all the evidence was returned. Payson v. Everett, 12 Minn. 137, (216.)

The summons was served on the 11th, and was returnable on the 17th. The service was, therefore, six days before the time of appearance.

The judgments of the district court and of the justice are reversed.