167 P. 827 | Utah | 1917
This is an action in replevin, or claim and delivery, as it is denominated in our statute. The plaintiff alleged in his complaint that on “the 15th day of December, 1915, * * * plaintiff was, and still is, the owner of * * * one red steer, ’ ’ describing the animal and giving marks and brands; that during the month aforesaid “the defendant, without plaintiff’s consent, and wrongfully, took said chattel from the possession of the plaintiff; ’ ’ that the defendant wrongfully “withholds and retains said chattel from the possession of the plaintiff,” etc. The prayer for judgment is in the usual form in such cases. The defendant answered the complaint, denying the plaintiff’s ownership and right of possession of said steer, and averred that the defendant “always has been and now is the owner, possessed and entitled to the possession of
It must be conceded that the only distinction between the two Utah cases cited by counsel, and this case is that in this case it is alleged that the plaintiff, on a prior date named, was, and that he still is, the owner, etc. That is in the case at bar, ownership and right of possession are alleged in both the past and present tenses, while in the cited cases ownership and right of possession were alleged only in the past tense. The complaint in this case was, however, not filed until the second day after it was verified, and hence it is contended that ownership and right of possession are not alleged as of the time the action was commenced. In view,
“A civil action may be commenced by the filing of a complaint with the clerk of the court in which the action is brought or by the service of a summons.”
If an action be commenced by the service of a summons, then, in order to maintain the action, the complaint must be filed within ten days after the service is made. Section 2946. Upon the other hand, if an action is commenced by filing a complaint, the summons, in order to continue the action in force, must be served within three months after the filing of the complaint. It does not necessarily follow, therefore, that, because a plaintiff alleges in his complaint that he was the owner of certain property on a date prior to the day the complaint was filed, he does not allege ownership at the time the action was commenced. Merely to follow the letter of the complaint may lead to serious error. The fact that actions may be commenced in two ways was apparently overlooked when the two Utah cases were decided, but from an examination of the records in those cases it seems the actions were commenced by the filing of a complaint, the allegations of which are in the past tense.
Although this action was commenced by the filing of a complaint two days after the same was verified, yet we think that, in view that the allegation of ownership and right of possession is in the present tense, the complaint is sufficient to withstand a general demurrer, and therefore sufficient after judgment. The allegation in the complaint is that the
In the first case cited from the Supreme Court of California, Affierbach v. McGovern, 79 Cal. 268, 21 Pac. 837, the complaint was not filed until more than four years had elapsed after it was verified. What was said in that case was therefore said in the light of the facts there presented. No one will contend that a lapse of more than four years between the time when the allegation of ownership (which allegation was in the past tense in that case) was made and the time of filing the complaint was not beyond the bounds of reason. In the case of Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750, it was, however, held that the same rule applied to a case where the complaint was filed the second day after it was verified. In that ease the allegation of ownership and right of possession was, however, also in the past tense, and not in the present tense. As before stated, the real question is, when was the action commenced, rather than the sufficiency of allegation. For example, although ownership and right of possession are alleged in the past tense, yet if the complaint is filed on the same day it is verified, and ownership and right of possession are alleged as of that day, no one would contend that the allegation was not sufficient, or that the complaint did not state a cause of action. If, however, the complaint, for some unavoidable reason, cannot be filed until the day I following its verification, or not for a few days thereafter, although the allegation of ownership and right of possession is in the present tense, the complaint fails to state a cause I of action. This certainly presents an anomaly in pleading.! It is pertinent to inquire, therefore, what is a proper test! to determine whether the facts alleged are sufficient to permití plaintiff to prove a good cause of action. I
The universal test in that regard is whether the evidence! that is relevant to the issues, if believed, entitles the plaintiff!
“It is more important that the court should he right upon later and more elaborate consideration of the cases than consistent with previous*493 declarations. Those doctrines only will eventually stand which hear the strictest examination and the test of experience. ’ ’
We are all of one mind that the rule promulgated by the Supreme Court of California, and followed by this court, is unnecessarily strict, and while it protects no rights, it may easily produce wrong and injustice, and will, in many instances, necessarily impose both public and private inconvenience and expense. We therefore hold that in case ownership and right of possession of the property in question is averred in the present tense in a complaint, the plaintiff may prove such ownership and right of possession, although the complaint was not filed on the day it was verified if filed in due course thereafter. In other words, that where in a claim and delivery action, ownership is alleged in the present tense, it may be proved, as in other cases where ownership is a controlling issue. The decisions in the cases of Savings Bank v. Peterson, supra, and Chambers v. Emery, supra, so far as they are repugnant to, or in conflict with, the views herein expressed are hereby overruled.
The judgment is therefore affirmed. Plaintiff to recover costs.