Vantilburgh v. Hamilton , 2 Mont. 413 ( 1876 )

Knowles, J.

The plaintiff brought this action to recover the possession of a horse taken by the above-named defendant on a writ of execution, commanding the appellant, Proffitt, as sheriff, to levy upon the property of William Yantilburgh, the husband of respondent. The appellant had filed a list of her separate property in tbe eonnty recorder’s office of Jefferson county before tbis, and in due time to save it from being subject to tbis execution. -Tbe appellants demurred to tbe complaint on two grounds: First. Tbat tbe complaint did not state a sufficient cause of action, as it did not show tbat plaintiff bad filed tbis list of ber separate property. Second. Tbat tbe complaint was too uncertain, as it did not particularly describe tbe property claimed. The description therein is: “ One large horse, about six years old.” Tbe court overruled tbis demurrer. Tbis was correct, as to tbe first ground of demurrer. It was unnecessary tbat tbe plaintiff should set forth tbe source of ber title to tbe property in dispute. Moak’s Yan Santvoord’s PI. 216; Obitty’s PI. 413.

As to tbe second ground, I think it should have been sustained. But it is not necessary to determine tbis. . Whatever defect there may have been upon tbis point, was waived by tbe defendant’s answering to the merits of tbe complaint and going to trial. De Boom v. Priestly, 1 Cal. 206; Pierce v. Minturn et al., id. 470; Brooks v. Minturn, id. 481; Williams v. Soutter et al., 7 Iowa, 435; Abbott v. Striblen, 6 id. 191.

The only other question presented in tbis case is as to whether tbe horse in dispute in tbis action, and tbe one specified in tbe list of property filed in tbe recorder’s office of Jefferson county, is the same. Tbe evidence was, tbat tbe plaintiff purchased tbe horse with ber own money; tbat she mentioned it in ber list and described it as a brown horse. She testified tbat she" called tbe horse a brown horse, although some might call him a sorrel. Pennington, witness for plaintiff, testified that he called tbe horse a light sorrel, although some might call him hrown. Hamilton and Boley, tbe defendants, both testified tbat the horse was a light sorrel. There may be considerable difficulty in determining tbe exact color of an animal. Tbe coloring tbat nature provides for their hair is so various, that even experts may dispute as to tbe shade of color tbat should be applied to some animals. According to Webster’s Dictionary, tbe French word, corresponding with our word sorrel, means yellowish brown. Tbe judge who tried tbe case in tbe court below, upon tbe issue of facts as well as law, found tbe description sufficient. Such must be our presumption from bis findings. We do not feel competent, from tbe evidence before ns, to determine whether that horse was a light sorrel or a Torown. That necessity was forced upon the judge in the court below, and there was evidence to support his findings upon this point, and hence it should not be disturbed.

Where there is any evidence to support a verdict, or the finding of a court sitting to try issues of fact, the general rule is that neither will be set aside in an appellate court. Ming v. Truett, 1 Mon. 322; Griswold v. Boley, id. 545.

Our statute provides that the property which a married woman may acquire after her marriage shall be exempt from her husband’s debts and liabilities, provided that she shall mention such property in a list, and record the same in the office of the register of deeds for the county where she l’esides. Cod. Sts. of Mon. 521.

According to the presumptions from the findings of the court below, the plaintiff embraced the property in dispute in a list filed in the proper office in due time. The property in dispute was not subject, then, to be seized on execution running against her husband’s property. For these reasons the judgment of the court below should be affirmed.

Judgment of the court below is hereby affirmed, with costs.

Judgment affirmed.