Carman v. Ross

Per Curiam. — The demurrer to the complaint should have been sustained. This action is to recover possession of specific personal property, and it is averred in the complaint that the plaintiff was and is the owner and in the possession of the property sued for. This is an averment that the plaintiff was in the possession of the property sued for when this action was commenced. This being the case, the plaintiff had no cause -of action. We do not think that this is cured by any other averment in the complaint.

The answer was demurred to on the ground, among others, that it did not state facts sufficient to constitute a defense. The demurrer was sustained generally. We are of opinion it was not well taken on the general ground above stated, for the answer does deny that the plaintiff is the owner of the property described in the complaint. The other ground of demurrer is so indefinitely stated that we cannot tell to what portion of the answer it relates, and therefore say nothing in regard to it.

The defendant refused to amend his answer. Nevertheless, the court below proceeded to try the case as if issues had been [250]joined in it by proper pleading. This trial ivas entirely irregular and erroneous. The cause seems to have been tried as if issues of fact had been made up, when in fact no such issues had been joined.

The findings are contradictory. The court in effect found that each party was in possession of the property sued for when the action was commenced. We cannot see how any judgment could have been pronounced on such a contradiction.

Judgment reversed and cause remanded for proceedings in conformity with this opinion.