Legal Opinion

Demers v. Clemens

Montana Supreme Court

Decided January 15, 1876PublishedCited by 3 opinions

Appeal from, Second District, Missoula Cou/nty. The answer was relevant and sufficient, and the demurrer should have been overruled. Caldwell v. Cans, 1 lion. 576. The defendants were bound absolutely by the recitals in the undertaking. Being given under the statute, the law imports a good consideration besides the retention of the property.

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Appeal from, Second District, Missoula Cou/nty. The answer was relevant and sufficient, and the demurrer should have been overruled. Caldwell v. Cans, 1 lion. 576. The defendants were bound absolutely by the recitals in the undertaking. Being given under the statute, the law imports a good consideration besides the retention of the property. The defense might have been good if interposed in the replevin suit; but defendants cannot avail themselves of it in an action on the undertaking. The judgment in the replevin suit is res ad-judícala as to all such matters. Lomme v. Sweeney, 1 Mon. 584.

1Opinion of the Court

Wade, O. J.

This is an action upon an undertaking executed by defendants in a suit by plaintiff against one Harding, upon claim and delivery of personal property under the statute. There was a judgment for the plaintiff for a return of the property, or for $324.90, its value, in case a return could not be had. The property was not returned, and execution for its value was not satisfied.

The defendants, in their answer, as a defense, allege that after the execution of the undertaking sued on, and prior to the judgment for plaintiff in the action for claim and delivery, plaintiff commenced an…

2Cited by3 opinions

  1. Pue v. WheelerMontana Supreme Court · 1927
  2. Clark v. National Surety Co.Montana Supreme Court · 1927
  3. Rinker v. LeeNebraska Supreme Court · 1890

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