
    KLEINSCHMIDT, Appellant, v. McDERMOTT, Respondent.
    [Argued October 11, 1892.
    Decided December 3, 1892.]
    
      Appeals — Sufficiency of pleadings, —After verdict for defendant, matter of defense in an answer cannot be attacked for the first time on appeal for alleged insufficiency, where such matter was neither demurred to or denied in the replication. {Raymond v. Wimsette, ante, p. 551, cited.)
    
      Appeal from Fifth Judicial District, Jefferson County.
    
    Action for wrongful taking of personal property. Judgment was rendered for defendants below by Galbraith, J.
    Affirmed.
    
      Cullen, Sanders & Shelton, for Appellant.
    
      John H. Shober, and George F. Cowan, for Eespondent.
   De Witt, J.

This action is for the alleged wrongful taking of personal property.

The defendant alleges in his answer that he was sheriff of Jefferson County. He then alleges: “That on or about the said tenth day of October, 1885, at said county of Jefferson, this defendant, acting in his official capacity aforesaid, and not otherwise, under and by virtue of a certain writ of attachment, duly issued out of the Probate Court of said Territory within and for the county of Jefferson, and in an action in said court then pending, entitled William B. Morse v. Gus. A. Larson, levied upon and attached, as the property of the said Gus. A. Larson, the defendant in said writ named, the goods and chattels in said complaint described.” This allegation appellant contends is insufficient.,

The verdict and judgment were for defendant. The appeal is from the judgment, and, since the evidence and instructions were stricken out of the record (ante, p. 309), the appeal stands upon the judgment roll alone. No demurrer was made to the answer. The replication does not deny the allegation of the answer now attacked. That attack is now made in this court for the first time. Appellant cannot now avail himself of this nature of an alleged insufficiency of the answer, after refraining from demurring thereto, and after filing replication, not denying the said matter. It was so held in Raymond v. Wimsette, ante, p. 551, citing Bohm, v. Dunphy, 1 Mont. 340.

The judgment is affirmed.

Affirmed.

Blake, C. J., and Harwood, J., concur.  