Rosenthal v. McMann

Temple, C. This record presents three appeals, — from the judgment, from the order refusing a new trial, and from an order made after judgment refusing to dismiss the action because judgment was not entered within six months after its rendition.

The action was brought to recover, damages for the conversion of five hundred dollars, and it is averred in the complaint, “ that on the fourteenth day of June, A. D. 1887, plaintiff was possessed of five hundred ($500) dollars in gold coin of the United States, and that she [508]then was, and ever since has been, and now is, entitled to the possession thereof.” Conversion and damage are then charged, but there is no averment of ownership".

The defendants, did not demur, but answered by a general denial and plea of a former judgment in bar.

On the trial, no objection was made to the sufficiency of the complaint, but the issue of fact was, whether the money belonged to plaintiff or her husband, whose creditors had attached it.

It is now claimed that the complaint is insufficient to support the judgment, which was for the plaintiff, because it does not aver ownership or title in the plaintiff.

To enable a plaintiff to recover for property taken by a wrong-doer, he must have the general ownership or a special ownership in the goods, and one having the possession merely is the owner as against a wrong-doer.' But it is said that possession is merely probative. One may recover against a wrong-doer upon a complaint averring ownership, although he prove possession only; because as against a mere trespasser that proves ownership, but here it is claimed the question is not one of evidence, but of pleading. But even on that theory, the facts necessary to show a cause of action in the plaintiff are all contained in the complaint, although some essential fact may appear only by inevitable inference. If the findings had included the facts averred, and had gone further, and stated that the property was not plaintiff’s, but belonged to some third person, whose bailee she was, it would have supported the judgment.

In fact, the allegation formerly deemed requisite, or at least held to be sufficient, — “ was lawfully possessed, as of his own property,” — contained nothing more. The possession would be presumed lawful, and as against a trespasser, even one who obtained possession wrongfully, ■was deemed to have been lawfully possessed.