Vanalstine v. Whelan

McFARLAND, J.

This is an action to recover certain goods attached by defendant Whelan, sheriff, as the property of defendants in certain attachment suits. Judgment went for plaintiff, and defendants appeal.

Appellants contend, among other things, that the complaint does not state a cause of action, because it is merely averred therein that at times prior to the commencement of the„s.uit plaintiff was the owner and entitled to the possession-of, the goods,; and there is no averment of the ultimate fact that he was not so the owner and, entitled to the possession when the action was commenced,. We see no valid answer to this contention. It has been held here over and over again that a complaint in what we call an action of claim and delivery is fatally insufficient if it contains no averment of ownership and right to possession at the time of the commencement of the action, and that a complaint like the one in the case at bar does not ■state facts sufficient to constitute a cause of action. (See

Bane

v.

Peerman,

125 Cal. 220;

Truman

v.

Young,

121 Cal. 490;

Holly

v.

Heiskell,

112 Cal. 174, and cases there cited;

Fredericks

v.

Tracy,

98 Cal. 658;

Affierbach

v.

McGovern,

79 Cal. 268.) We could not, therefore, condone the insufficiency of the complaint in the present case, without expressly overruling a long line of former decisions of this court,—which we certainly have no desire to do.

The only plausible reply which respondent makes to this contention is, that the insufficiency of the complaint above

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