122 Cal. 332 | Cal. | 1898
1. In its original form, this was an action in the nature of replevin to recover possession of one hundred and forty-six head of swine alleged to be the property of plaintiff and wrongfully taken and withheld by defendant. In his answer defendant justified the taking in his capacity of township constable under a writ of attachment issued in a certain suit against one W. M. Ham; he alleged that the hogs were the property of said Ham, and also that before the commencement of this action he had sold them under execution to satisfy the judgment obtained in said suit against Ham, and delivered possession thereof to the purchaser. At the trial, the defendant’s averments concerning the sale of the animals under process, and that he had not possession thereof at the commencement of this action, were established by proof. After the evidence was closed, but before the final submission of the case, by leave of the court granted over defendant’s objection, plaintiff amended her complaint so as to transform the action virtually into one of trover, charging defendant with converting the property, and claiming damages accordingly. On defendant’s request, it was ordered that the answer to the original stand as the answer to the amended complaint, and defendant then moved the court to set down the cause for trial on the issues thus raised; the record shows that this motion “was heard on the papers and evidence in the case,” and was denied.
It was not an abuse of discretion in the court to allow plaintiff to amend her pleading so that it might support a recovery for the
2. While the hogs were yet held by defendant, plaintiff served on him a verified written claim thereto, pursuant to sections 549 and 689 of the Code of Civil Procedure, in which “the grounds of her title” were stated as follows: “Affiant acquired title to said property by purchase of certain hogs on or about April 1, 1895, from E. W. Saunders and W. M. Ham, and the said hogs levied upon are the same so purchased and the increase of the same.” At the trial it appeared that she had bought some of the animals from Saunders and others from Ham; and it is objected that the statement in said verified claim is defective and false in that it indicates a purchase from those persons jointly. We consider that the statement sufficiently apprised the officer of the source of plaintiff’s title, whether she had acquired all the hogs from Saunders and Ham jointly, or some from each of them severally. (Dubois v. Spinks, 114 Cal. 289 ; Vermont Marble Co. v. Brow, 109 Cal. 241; 50 Am. St. Rep. 37.)
3. It is urged that the sale of hogs by Ham to plaintiff was not accompanied by immediate and continued change of possession. It seems unnecessary to detail the evidence on this point. The animals were in Ham’s custody when attached; but he had them, together with hogs of other persons, as an agister for hire, not on the premises where they ranged before plaintiff bought them, but on lands he rented for the temporary purpose; and there was evidence of such previous delivery and continuous change of possession as, in our opinion, sustains the finding in plaintiff’s fa
Haynes, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Harrison, J., Garoutte, J., Van Fleet, J.