Pioneer Truck Co. v. Hawley

CONREY, P. J.

The plaintiff brought this action to re: cover judgment for possession of a certain described auto-truck, or the value thereof if a return cannot be had, and for damages. Judgment having been entered in favor of the plaintiff, the defendant appeals therefrom, and the case is brought here upon the judgment-roll alone.

Appellant claims that it nowhere appears, either from the complaint or the findings, that appellant ever had possession of the property sought to be recovered, and that for that reason the judgment should be reversed. He relies upon the rule that in an action of this kind the plaintiff cannot recover without alleging- and proving that at the time of commencement of the action the property was in possession of the defendant.

(Riciotto

v.

Clement,

94 Cal. 105, [29 Pac. 414].)

[595]

In the case at bar the only allegations touching the defendant are that, at a stated time a few days prior to the commencement of this action, the plaintiff demanded possession of said property from the defendant, and that defendant has failed, refused, and neglected to deliver the same to the plaintiff; “that plaintiff is damaged by the unlawful holding of said property in the sum of twenty-five dollars for each and every day the same has been withheld since said seventeenth day of January,” etc. The answer of the defendant was equally noncommittal and silent on the subject of defendant’s possession of the truck, but denied the allegations above noted. The findings of fact affirm the demand by plaintiff, the failure and refusal of defendant to deliver the property to plaintiff, and declare that the plaintiff is damaged in a stated sum by the detention' of said truck. In the “conclusions of law” it was further stated that the defendant “withholds possession thereof unlawfully from said plaintiff.”

[1]

If the complaint does not wholly fail to touch upon the subject of possession of the property by defendant at the commencement of the action, it must at any rate be admitted that the implication of such possession is very defectively conveyed. Respondent contends, however, that since no demurrer was filed in the case, and since the court made findings as above stated, and it is not made to appear that any question was raised in the court below concerning the sufficiency of the complaint, that this court must now assume, in favor of the findings and judgment, that the fact of defendant’s possession of the truck at the commencement of the action was, at the trial, treated as a fact within the issues and properly to be determined by the court. On this ground we think that the judgment should be sustained. In