Demers v. Clemens
Montana Supreme Court
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.
Read the full summary
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
- Pue v. WheelerMontana Supreme Court · 1927
- Clark v. National Surety Co.Montana Supreme Court · 1927
- Rinker v. LeeNebraska Supreme Court · 1890