Montgomery v. Fidelity & Deposit Co. of Maryland

STURTEVANT, J.

The plaintiff commenced an action to recover a judgment against the defendant on a replevin bond given under section 512 of the Code of Civil Procedure. The defendant appeared and answered. Thereafter the plaintiff on notice made a motion for judgment on the pleadings. The motion was granted and from the judgment entered the defendant has appealed.

The first point made by the appellant is that the complaint does not state facts sufficient to constitute a cause of action because it does not allege that the property in litigation was delivered to the plaintiff in the replevin action. It is true that there is no direct, positive and clear-cut allegation in that behalf, nevertheless it appears in the complaint “that the defendant, Nora A. Knobloch, filed her answer in said cause, claiming the ownership of the property in said complaint described, asking that she have judgment therefor, or in the event that delivery thereof could not be had, for $1,134 as the value thereof, and for the sum of $750 damages for the detention of said automobile from her. . . . Thereafter, and on the 19th day of June, 1922, and after trial of said action numbered 91165, judgment was duly made and entered in said action in favor of this plaintiff ' as executrix of the last will and testament of said Nora A. Knobloch, deceased, for the delivery of said automobile, which is the subject of said action, to the said Mattie K. Montgomery as such executrix as aforesaid, and in case de_ livery thereof could not be made for the sum of $1,000- as the value thereof, and for the sum of $750 damages for the detention of said automobile from the said Nora A. Knob-loch and for the detention thereof from the said Mattie K. Montgomery as such executrix since the death of the said - Nora A. Knobloch and for costs amounting to the sum of eight and 50/100 dollars.” In the presence of these allegations we think that the defendant may not claim that there is an entire failure to state facts; but at most it may merely claim that the facts are stated defectively.

The appellant complains also that in granting the motion of the plaintiff for judgment on the pleadings that the trial court ignored certain defenses contained in the answer.

[254]

(a) In paragraph 6 of plaintiff’s complaint the plaintiff alleged the death of Nora A. Knobloeh, the commencement of probate proceedings in San Francisco, the issuance of letters testamentary, and the formal appointment of this plaintiff as executrix of the last will and testament of Nora A. Knobloch. The defendant alleged that it had no information or belief on the subject and therefore denied the allegations of that paragraph. The denial should have been positive.