Lapique v. Plummer

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants in an action upon claim and delivery of certain personal property, namely, 1321 sacks of barley and certain other crops grown upon lot B of the Rancho Los Vergines, in Los Angeles County, or the value of said property in case delivery thereof cannot be made, alleged in the complaint to be the sum of $1,849, with $500 damages for the alleged wrongful detention of said property.

The plaintiff claims the right to recover this property by virtue of the assignment to him by one Pierre Agoure of all 'the latter’s right, title, and interest in a certain lease of said portion of said rancho, alleged to have been executed to said Agoure by certain persons on August 31, 1907. The defendants in their answer deny any ownership or right of said plaintiff in said personal property, and for want of information and belief deny that said Pierre Agoure ever conveyed or assigned to said plaintiff the aforesaid lease, and further allege that if such assignment was made it was

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colorable and fictitious, and was made by. said Agoure for the purpose of enabling him to evade and avoid the obligations of said lease, and was not intended to divest him of his title to or interest in the same. The plaintiff demurred to this answer upon several grounds, and also moved the court to strike out that portion thereof which undertook to allege the colorable and fictitious quality of the transfer of said lease to the plaintiff. The plaintiff also moved for a judgment on the pleadings. The said demurrer was apparently overruled and these other several motions denied by the trial court at some time during the year 1913, though from the state of the record before us we are unable to ascertain just what the action of the trial court was in these several regards.

In the year 1917 the plaintiff moved the court for leave to file a voluminous amended complaint setting up a large amount of matter, probative in character and materially varying from the plaintiff’s original allegations as to the foundations and nature of his claim of right to said property. His motion for leave to file said amended complaint came on for hearing before said court and was denied on 'January 5, 1918, but again we are left entirely in the dark as to the grounds of said denial. The cause came on for hearing upon said last-named day, and upon its submission the trial court made its findings in the defendant’s favor, and judgment was accordingly entered requiring the return of the property which the plaintiff had taken upon claim and delivery, or the • value thereof, fixed at the sum of $1,500, together with damages equivalent to the interest upon said sum from the date of the plaintiff’s taking of said property, together with their costs. The plaintiff thereupon moved for a new trial upon all the statutory grounds, which motion being upon the hearing thereof denied the plaintiff has taken and prosecuted this appeal.