
    Hunt v. Bennett.
    An answer to a petition in replevin, after denying the averments of the petition, alleged in reference to the property described in the petition, “ that he, the said defendant, is rightfully entitled to the property, and to the possession thereof; ” held, that this allegation is not new matter, and amounts to nothing more than a cumulative responsive denial of plaintiff's rights, and need not be specifically denied, under § } 1741 and 1742 of the Code.
    Where an objection to pleadings was not first raised in the court below, it should not be entertained by the supreme court.
    In an action of replevin, where the jury return a verdict, “We the jury find a verdict for the defendant of fifty dollars,’1 it is not error in the court to refuse a judgment ordering the property to be restored to the defendant. Such a verdict is not inconsistent with plaintiffs's right to the property.
    
      Appeal from Muscatine District Court.
    
   Opinion by

Greene, J.

This was an action of replevin commenced by Joseph Bennett against Geo. W. Hunt, for two hundred pork barrels and other articles. The cause was submitted to a jury, who returned a verdict in favor of the defendant for fifty dollars. The court rendered a judgment against the plaintiff accordingly, and adjudged that each party should pay his own costs. Upon the verdict, defendant’s counsel moved the court for a judgment against the plaintiff, for the return of the property replevied ; bub-the court overruled the motion.-

1. A question is raised in this court in reference to the state of the pleadings, which does not appear to have been in any way decided by the court below. It is claimed that defendants answer set up new matter, under § 1741 of the Gode, and that it amounts to an affirmative allegation, not' responded to, and should therefore be taken as true ; § 1742. The averment referred to is the concluding words of the answer, in which it says that he, the defendant, is “ rightfully entitled to said property, and to the possession thereof.” This is not new matter. It amounts to nothing more than a cumulative denial of plaintiff’s right to the property and possession, by averring the right to be in defendant. The answer first denies the allegations of the petition, in which the plaintiff claims the right to the property and the possession, and in conclusion affrms that which amounts to nothing more than such denial. This cannot be consid-.. ered new matter, requiring a specific admission or denial, for it is in itself nothing more than a responsive denial of the petition, in the form of an affirmative allegation.

It was held in Pringle v. Phillips, 1 Sandf., 292, that if the declaration allege title in the plaintiff, and the defendant plead any matter showing special title in himself, he must still traverse the plaintiff’s title. The issue must be joined on the latter, and the defendant’s special right, or property, will, as evidence, sustain him in his traverse.

The petition in the case at bar, claims the title to the property, and the right of possession to be in the plaintiff. Tbe answer claims the same right to be in the defendant. The issue, then, is distinctly presented to the jury, to be decided according to the evidence, whether the plaintiff or the defendant was entitled to the property.

Besides, this objection to the pleadings was in no way raised in the court below, and therefore should not ba entertained in this court.

2. We now come to a point that was raised in the court below. It appears by the bill of exceptions, that the jury returned the following verdict: “We, the jury, find for ihe defendant fifty dollars.” On this verdict defendant’s counsel moved the court for a judgment for a return of -the property replevied. This motion was overruled, and defendant took exception to that decision. This court is now called upon to render such a judgment as the court below should have rendered. That court rendered a judgment in accordance with the verdict, and this court must do the same. From the verdict it can only be inferred that the plaintiff was entitled to the property he had replevied, by paying the defendant the sum of fifty dollars. This .appears to have been the opinion of the district judge, before whom the evidence vas submitted, as indicated by ;his overruling the motion, and by deciding that each party ¡should pay his own costs ; Code, § 1811.

If the jury had found the right of property to be in the defendant, it is to be presumed that they would have returned that fact in their verdict. As the verdict did not ¿ward a return of the property to the defendant, it may be inferred that they found that the plaintiff had a right ;to retain it. Such a verdict, at least, is not inconsistent ■with plaintiff’s title to the property.

If defendant’s counsel had reason to believe the ver•dict not in accordance with the evidence, an effort should •have been made for a new trial.

If the verdict had been for the defendant generally, or for the defendant on the issue joined, he might with propriety claim a judgment da returno halando, .unless it appeared on die trial that the defendant was not entitled to the property, and in that event the court should direct the jury to correct or return a more specific verdict.

Cloud and O'Connor, for appellant.

¿Stephen Whicher, for appellee.

In Johnson v. Howe, 2 Gilman, 342, it was held that on a verdict for the defendant, he was not entitled to a writ de retumo habendo, in an action of replevin, where non detinet was pleaded, and where defendant showed no title or right of possession in the property.

We infer from the ruling of the court below in this case, and fr'om the verdict of the jury, that defendant showed bo title or right of possession in the property, but showed that he was entitled to fifty dollars from the plaintiff for eomething connected with the property replevied.

•As we have none of the evidence before us, we are not advised of the facts upon which the verdict is founded. But from the record before us, which shows no error, we must take it for granted that the verdict and judgment are correct.

Judgment affirmed.  