Roberts v. Johannas

In this case the demurrer must be treated as one to the whole answer. If, therefore, the answer contains matters constituting a defense to the action, which is in substance good, however informally or inartificially stated, the demurrer was properly overruled. "We think the answer does deny that the property described in the complaint ever came to the possession of the defendant. But it is said by the learned counsel for the plaintiff, that the answer in that respect is faulty, because it denies, in the words of the complaint, that at a particular day the defendant had possession of the property, and thus amounts to a negative pregnant, that on some other day the defendant had possession. This criticism is not sustained by the averment, which is as follows: “ The defendant denies that at the time stated in the complaint, or at any other time, the property described in said complaint came into the possession of the defendant, or that the same was or remained in his possession at the time of the commencement of this action, as alleged.” This is a denial that at any time the property came to the possession of the defendant, and states a complete defense. It surely does not imply that the defendant had *620possession at some other day than the one named, so as to admit the material fact of possession. The objection is not, therefore, well taken to that part of the answer.

But the other portions of the answer seem to ns bad in substance. It is not alleged that the stallion therein mentioned is one of the animals mentioned in the complaint, nor that he was over two years old add suffered to run at large, ^o as to come within the provisions of ch. 93, Laws of 1870. Had the demurrer been confined to that portion of the answer, it should have been sustained. But it amounts to a demurrer tó the whole answer, and, for the reasons given, was properly overruled.

By the Court. — The order of the circuit court is affirmed.