Credit Bureau of San Diego, Inc. v. Horeth

MARKS, J.

This is an appeal from a judgment awarding plaintiff possession of personal property and special damages for its detention. The appeal is on the judgment roll alone. Findings of fact were waived.

The sole ground urged for a reversal of the judgment is that the complaint does not allege facts sufficient to constitute a cause of action as it failed to allege ownership in plaintiff or right to possession of the property at the time the action was filed on June 5, 1942. The only allegation on the question of ownership and right of possession is the following: “That on or about the 17th day of February, 1942, and at all times hereinafter mentioned, plaintiff’s assignor, R. A. Wright, was the owner and entitled to the immediate possession of the following goods and chattels, to-wit: . . .” Defendant did not demur to the complaint and admits its insufficiency was not raised in the trial court.

The general rule is that a complaint for the recovery of personal property must allege ownership and right of possession, or facts showing right of possession at the time the action was filed.

(Stanley

W.

Smith, Inc.

v.

Pilgrim,

93 Cal.App. 539 [269 P. 765];

Affierbach

v.

McGovern,

79 Cal. 268 [21 P. 837].)

Plaintiff cites the ease of

Stevens

v.

Weisbaum,

87 Cal.App. 664 [262 P. 762], where it is held that an allegation in a complaint to the effect that C. C. Stevens, plaintiff’s assignor, etc., was owner and entitled to possession of personal property, was a sufficient inferential allegation of an assignment to make the pleading good against a general demurrer.

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