Babcock v. Maxwell
Montana Supreme Court
Appeal from, Dist/rict Court, Callatin .County; F. F. Armstrong, Judge. Action by W. H. Babcock against F. A. Maxwell. From a judgment for defendant on the pleadings, plaintiff appeals. Statement of the case by the justice delivering the opinion.
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Appeal from, Dist/rict Court, Callatin .County; F. F. Armstrong, Judge. Action by W. H. Babcock against F. A. Maxwell. From a judgment for defendant on the pleadings, plaintiff appeals. Statement of the case by the justice delivering the opinion. The complaint in this action states, in substance, that on October 6, 1895, plaintiff was the owner and possessed of certain lumber in Gallatin county, and that the defendant then and there unlawfully took the same, and converted it to his own use, for which wrong judgment in a sum equal to the value thereof is demanded. The answer contains a denial…
1Opinion of the Court
Pigott, J. —
1. From the foregoing statement it is mani-, fest that the court, as well as the defendant, treated the so-called “equitable defense” as new matter, not constituting a counterclaim; and it is equally plain that the court rendered judgment upon the ground that the allegation of such new matter must, in the absence of a reply, be taken as true. Such being the theory upon which the motion for judgment was made and sustained, we deem it proper for-the present purpose to adopt the view of the court below to the extent of conceding that the affirmative averments of the answer set up new…
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- Doyle v. FranklinCalifornia Supreme Court · 1870
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