Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-06-22

owned by said Stock, and that thereafter
they carried on and conducted the BUSH
uess of sheep raising jointly, and shared
the expenditures and divided the profits
and losses that grew out of said joint
venture in the proportion above stated;
that the relation so formed continued up |
to the death of said Stock on the 25th day |
of November, 1898. This amendment
was permitted over the objection of the
respondent, and upon her application the
court permitted her to file an amended
answer, in which, among other matters
pleaded, she set up the bar of the Statute
of Limitations. The allowance of this
plea by the court is assigned as error.
The appellants right to maintain an
action to recover all the sheep, under the
averments of the partnership in the orig
inal complaint, arose upon the death of
William Stock in November, 1898. There
is no provision in our statute which
would have barred his right Of action I'M
der the averments of the original COM
plant at the time he instituted the same,
hence the plea of the bar of the statute
could not have been successfully inter-
posed against his right to recover at that
time. He did not seek to recover as a
joint tenant or tenani-in-common, until
he incorporated the amendment in his
complaint ON the 7lh day of February,
1909. The amendment contained SUBJ
stantial and new matter. His right to
recover was based upon new grounds.
A new cause of action Was set up, and the
rn1Q 10 Il hi Iol aud i'm
| flict with the provisions of our statute
| regulating amendments to pleadings that
where a complaint to which an answer
has been filed is amended in substantial
matter, the defendant has an absolute
right to plead de moro.
list Am. & Eng. Eucy. Pl. Il Pr. p. 627,
and authorities cited.
| 1t seems to us that where the appel
liant, as in this case, asked and was grant
ed permission by the court over the re-
spondent's objection to Incorporate into
his complaint a new cause of action, it
! would have been gross error to have re-
| fused to allow her at the first opportun-
ity to avail herself of any valid defense
which might exist against appellants
right to recover upon the new cause of
| action, or cause which had been
amended by inserting new and substan-
tial matter Whether or not it would
have been error to allow the respondent
to have interposed the plea of the bar OF
of the Statute of Limitations at that stage
of the proceedings where no amend
ments to the complaint had been ask ed
and allowed, Is aquestion upon which il
is not necessary to express an opinion
1t is sufficient for this case to say that
under the Facts of the record the trial
court did not abuse it's discretion in per
hitting the plea.
1t is also claimed that the plea of the
| Statute of Limitations is not sustained
If the appellant had the right to recover
the sheep under the claim of joint owner
| ship, as set up in the amended com
plant, the record shows that such righ
was barred by the lapse Of time. 1t ap
} pears from the evidence that on or abou
the 10th day of August, 1895, Stock abso
} lutely denied that the appellant had an.
right, title, or interest in or to the sheel
in controversy in conversation with ap
pellant in the presence of witnesses; tina
he Immediately, as shown by the stipula
ton of the parties, took and held the ex
J elusive control and management of tn
sheep and wholly excluded the appellan
theretrom up to the time of his deatt
and during said time paid all the ex
3 penses and retained all the profits.
3 Generally one Tenant cannot maintain
: an action ia replevin against his Gotten
I | fOr tho " of tho
Q erty or his interest therein, but if tn
e property is serverable, and the tenar
/, has a right to sever his part from til
, whole, and this right is refused, he ma
! enforce such right by replevin.
|. Freeman on Contenancy, End Ed
o Sec. 2S9. 18th Am. 4 Eng. Ency. {
r Law, 2nd Ed, p. 700
e 1t appears, therefore, that the right G
y the appellant to recover in this actio
It under his claim of joint ownership, if
b had any such right, accrued on or abot
= the 10th day OF August, 1895. He did nt
g attempt to assert this right for more tina
four years. His right of action is barre
by the three year clause of our statu
(Com. Laws, Sec. 37lS,) at which time h
co-tenant, William Stock, was living.
We have been unable to find any pr
visions of the statute which in any ma
ner changes or enlarges the rights of II
parties as above indicated, or that Col
6 fers any greater right upon the appella
% in his action against the legal represent
k. tive OF William Stock, In fact, Secti'
ne 165 of the act regulating the settlement
a. tho estates of deceased persons. speci
g. cally provides, among other matters,
10 the maintenance of actions to recOv
no personal property by or against exec
nd tors or administrators in all cases whe
ed the same might have been maintained
or against their respective testators
IN intestates in their lifetime.
CHI Com. Laws, Sec. 95l.
The only remaining question to
m considered involves the sufficiency of
he evidence to support the judgment Of
nd court. The appellant earnestly confer
ia | that the evidence establishes the eXi