
    [No. 6379.]
    Thomas v. Ray.
    1. Pleadings — Judgment on the Pleadings — Where the plaintiff declared in replevin for live stock, and the answer, in one defense, denied both plaintiff’s ownership and right to possession since a date prior to the institution of the action, held that though in another defense the taking of the animals from the range and the refusal to surrender them on demand, was admitted, plaintiff in order to recover must establish both ownership and the right of possession, at the institution of the action, and that his motion for judgment was properly denied. — (424-426)
    2. Practice — Judgment of Discontinuance, is properly entered where, plaintiff’s motion for judgment being denied, he stands thereon. — (427)
    
      Error to Montrose District Court — Hon. Sprigg Shackelford, Judge.
    Messrs. Selig & Crose, for appellant.
    Messrs. Bell, Catlin & Blake, for appellee.
   Mr. Justice Gabbert

delivered the opinion of the court:

Plaintiff in error commenced an action in replevin against defendant in error for the possession of two bulls, and damages for their alleged wrongful detention. For answer the defendant interposed two defenses, consisting of (1) what was intended to put in issue the allegations of the complaint; and (2) what appears to have been regarded as an affirmative defense, to which the plaintiff filed a replication. Plaintiff then filed a motion for judgment on the pleadings, which was overruled, and later, having announced in open court that he elected to stand upon this motion, the cause, on motion of defendant, was dismissed at the cost of plaintiff. From this judgment the plaintiff has brought the case here for'review on error.

The complaint was an ordinary one in replevin, and alleged, in substance, that at the time of the commencement of the action plaintiff was the owner, and entitled to the immediate possession of the animals in controversy (two Hereford bulls), branded in a manner specified; that defendant wrongfully took them from the range and from the possession of plaintiff, and has ever since wrongfully and unjustly detained them, and now detains them, without the consent of plaintiff, to his damage in the sum of $100.00, and that before the commencement of this action he demanded of defendant the return thereof, “but defendant refuses to surrender same and is now in possession thereof without any title or claim of any kind. ’ ’

The first defense is as follows: “First. The defendant denies that the plaintiff was entitled to the immediate possession of two Hereford Bulls (branded as described in complaint) or that he was the owner thereof at the time of the commencement of this suit, or that he was such owner or entitled to the possession of said bulls, at any time since on or about the 21st day of July, 1906.

“Second. The defendant admits that he took said bulls from tbe range, but denies that he took them wrongfully or from tbe possession of tbe plaintiff, and denies that be wrongfully and unjustly detains said bulls, or that be ever wrongfully and unjustly detained same. Denies that tbe said plaintiff did not consent to bis having tbe bulls. Denies that tbe plaintiff bas been damaged in tbe sum of $100.00 by reason of tbe taking and detention of said bulls by tbe defendant, or at all, by reason of any act in tbe premises of tbe defendant.

“Third. Tbe defendant admits that be refuses to surrender said bulls to tbe plaintiff. Denies that be hasn’t any title thereto or that be bas not a claim and title to said bulls. ’ ’

This defense, counsel for plaintiff contends, not only admits tbe ownership of tbe bulls in controversy, but expressly admits tbe taking of tbe bulls from tbe range, and tbe refusal to surrender them to tbe plaintiff, and hence, it is argued, does not tender an issue, and is an implied admission of tbe allegations of tbe complaint. It is claimed that a denial in ipsis verbis not only fails to raise an issue, but is an admission of tbe allegations of tbe pleadings to which it is directed. This proposition cannot apply to tbe defense under' consideration, unless it is tbe third paragraph, and possibly some portions of tbe second, but this infirmity does not extend to tbe denials embraced in the first paragraph.

Tbe action appears to have been, commenced about March 2, 1907. Plaintiff alleges that be was tbe owner and entitled to tbe possession of tbe animals in controversy at that time. Tbe defendant denies that plaintiff was tbe owner or entitled to tbe possession of tbe animals at any time since on or about tbe 21st day of July, 1906, a date anterior to tbe commencement of tbe action. This denial certainly puts in issue tbe averments of ownership and right of possession, as alleged by the plaintiff. The action in replevin is primarily an action for possession. 'With this in issue plaintiff was not entitled to recover unless he established, by competent testimony, his right to possession when the action was commenced. For the purpose of showing that he did not then have that right, the defendant, under his denial, could have introduced evidence that the right of possession was at that time vested in him or in some third, person. Such being the situation of the parties with respect to the introduction of testimony, from which the facts would be determined fixing their rights to the subject-matter of controversy, it is clear that an issue on the right of possession was tendered ’ by the answer. In other words, where the pleadings raise a material question of fact which must be determined from testimony before a judgment can be rendered, a motion for judgment on the pleadings must be denied.—Cache la Poudre I. Co. v. Hawley, 43 Colo. 32. Whether or not other averments of the complaint were put in issue by the defense under consideration is immaterial. The gist of plaintiff’s right to maintain his action was put in issue, and he could not recover unless he at-least proved his right of possession, even though other averments in his complaint were admitted by failure to deny, for the reason that a motion for judgment on the pleadings cannot be sustained unless under the admitted facts, the moving party would be entitled to judgment, without regard to what the findings might be on the facts upon which issue is joined—Mills v. Hart, 24 Colo. 505; Rice v. Bush, 16 Colo. 484—or, as held by other authorities, judgment upon the pleadings cannot be rendered in favor of plaintiff unless upon the admissions of the answer, no other judgment is possible than that prayed in the complaint.—Roberts v. Colo. Springs & I. Ry. Co., 45 Colo. 188.

Having reached the conclusion that under the issues as made by the first defense, plaintiff could not recover except on the introduction of testimony establishing his right to the possession of the animals in controversy, it logically follows that having refused to do this by electing to-stand on his motion, the court very properly, on the motion of defendant, dismissed his action.

It is urged that the second defense 'is evasive and contradictory, and does not tender any material issue. In as much as the first defense tendered a material issue, the sufficiency of the second defense in this respect is of no moment. Each defense stands by itself, and must be tested by what it contains. A judgment cannot be rendered on the pleadings on motion of the plaintiff where the answer contains a denial of the material allegations of the complaint, even though the answer sets up a special defense separately stated, which admits the allegations of the complaint by failure to deny.—Nudd v. Thompson, 34 Cal. 39; Amador Co. v. Butterfield, 51 Cal. 526.

Our attention is directed to §§ 4266-7-8, Mills ’ Ann. Stats., relating to bills of sale for stock sold, penalty for violation, and the duty of the purchaser to show bill of sale. "We do not see how these sections have any application to the case at bar. Possibly they might have in connection with the facts set up in the second defense, but, be that as it may, it does not appear, so far as advised, that on the question of the .right of plaintiff to a judgment on the pleadings, in so far as the first defense is involved, they have any application.

The judgment of the district court is affirmed.

Affirmed.

Chief Justice Steele and Mr. Justice Hill concur.  