Howell v. Foster

Ross, J. The plaintiff brought this action to recover the possession of four thousand four hundred and fifty-five sacks of wheat, seven hundred and sixty-four sacks of barley, and two hundred and thirty head of hogs. In his complaint, which was verified, he alleged that he was the owner of the grain and hogs, and that defendant had, without his consent, taken the said property into his possession, and continued to withhold it from the plaintiff. Defendant who, at the times mentioned in the record, was sheriff of Tehama County, answering the complaint — the answer being also verified — denied the ownership by the plaintiff of the property in question, and alleged that the same was owned by the qdaintiff and one Mayfield as tenants in common, and that in his official capacity he (defendant) levied upon and took all of the jn’operty into his possession, under and by virtue of two certain writs of attachment duly issued out of the Superior Court of Tehama County in certain actions against Mayfield. Defendant also alleged in his answer that after his levy, the plaintiff, by virtue of a Avrit of replevin, took all of the property from his (defendant’s) possession, and asked a return thereof to him, to be held subject to the aforesaid Avrits of attachment. When the case came on for trial, the court beloAv, on motion of the plaintiff and against the objection and exception of the defendant, allowed the plaintiff to amend his complaint by striking therefrom all of the allegations in relation to the íavo hundred and thirty head of hogs, and also struck out of the defendant’s answer all reference thereto. This was done upon the verbal statement of plaintiff’s counsel that the defendant had not in fact levied the writs of attachment upon the hogs. But not only did the verified complaint of the plaintiff shoAV that defendant had taken the hogs, but defendant, in his verified answer alleged that lie had levied upon them, and further alleged that subsequently to his levy the plaintiff, by virtue of a writ of replevin, had taken the hogs from his (defendant’s) possession. Under such circumstances the court beloAv erred in allowing the amendment to the complaint, and in striking out the portions of the answer referred to; for if the averments of the ansAver Avere [172]true, the effect of the action of the court was to take the hogs from the possession of the defendant and transfer them to the plaintiff without affording the defendant an opportunity to try the question of his right to their return, which he affirmatively alleged. For this error we must reverse the judgment and remand the cause for a new trial; and as there must be a new trial, it is proper that we should pass upon the other question in the case.