Richardson v. Smith

By the Court, Currey, C. J. This action was brought to recover the possession of certain personal property of which the plaintiff alleged in his complaint he was the owner and in the possession at the time it was taken by the defendants. To the complaint the defendants answered, and then the cause was submitted to the Court for judgment upon the pleadings. The Court gave judgment for the defendants. The complaint is in the usual form in such cases, and no question arises as to its sufficiency. It is therein alleged that on a certain day, at the County of Tehama, the plaintiff was the owner and in the possession of the property described in the complaint, which wTas of the value of twenty-three thousand dollars; and that then and there the defendants wrongfully took from the plaintiff’s possession, and from thence to the time the action was commenced wrongfully detained the same property from him, by reason whereof he [531]had sustained damage, etc. In conclusion, the plaintiff demands judgment for the possession of the property, and if that cannot be had, that then he may have judgment for the value thereof, etc.

The defendants by answer deny that the plaintiff was the owner and entitled to the possession of the property; that the defendants at any time wrongfully took and detained the property from the plaintiff. They also deny that the property was worth twenty-three thousand dollars, and further, they deny directly that plaintiff has been damaged by the detention of the property in the sum of one thousand dollars or in any other sum. Then for an affirmative defense the defendants aver that on the 9th of May, 1864, the defendant Smith, who was then Sheriff of Tehama County, seized and took into his possession the property in controversy as the property of Doll and Simpson, under and by virtue of a writ of attachment issued in an action then pending in the District Court of the Second Judicial District, in which one Corcoran was plaintiff and Doll and Simpson were defendants, and that since that time Smith, as Sheriff of said county, has held said property by virtue of said writ, and that at the time this action was commenced the same property was in the hands of the defendant Lewis as the keeper thereof for the Sheriff. The defendants in conclusion “ deny each and every allegation set forth in the plaintiff’s complaint not consistent with the foregoing answer.”

The only point to be decided in this case is as to the sufficiency of the answer. A brief analysis will show that it fails to traverse any material allegation of the complaint, except the one respecting the damage which the plaintiff had sustained by the alleged wrongful taking and detention of the ¡ property. The defendants undertake to meet the averment that plaintiff was the owner and in the possession of the property by denying that he was the owner and entitled to the possession of it. This is neither a denial that the plaintiff was the owner of the property nor that he was in possession of it when it was taken from him. He may have been in the