20 S.D. 414 | S.D. | 1906
This is an'appeal by the defendant from an order overruling his demurrer to the complaint. The action was one in claim and delivery, and it is alleged in the complaint in substance : That the defendant is the duly appointed and acting sheriff of McPherson county; that on or about February 2, 1905, the Hamm Brewing Company, a corporation, commenced an action in the circuit court against the plaintiff and respondent, in which it is claimed to be entitled to the possession of certain personal property described in the complaint in that action and affidavit therein, and that such proceedings were had therein; that the sheriff took into his possession the property described in said complaint and affidavit and also property not therein described of the value of $1,-200, and did wrongfully mix and co-mingle the same with the other property taken by him under said affidavit in said action, and delivered the same to the said plaintiff in said action, and by reason thereof the same has been lost to this plaintiff; that by reason of such wrongful act of said officers the plaintiff has been damaged in the sum of $500; that plaintiff has demanded the possession of said property, and defendant has failed and refused to deliver the same. Wherefore, the plaintiff demands judgment against the said defendant for the return to him of the said property or for the sum of $1,200, the value thereof in case a return cannot be made, and for the sum of $500, damages for the wrongful detention thereof and costs of the action. To this complaint the defendant interposed a demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action. An order was made overruling the demurrer, from which, as above stated, the defendant has .appealed.
It seems to us also1 equally clear that the complaint was insufficient in that it failed to describe the property alleged to have been taken by the defendant. It will be observed that all the description that the complaint gives of the property is, “goods, wares, and merchandise to the amount and value of $1,200.” It is essential in such an action that the property sought to be recovered be sufficiently described so that it can be identified by the officer serving the process, and a sufficient description given to enable the defendant to know what property he is charged with detaining, in order that he may prepare his defense to the action. Wells on Replevin, § 169; Cobbey on Replevin, § 544; 18 Ency. Plead. & Prac. p. 534. In 18 Ency. Plead. & Prac., supra, the author of the article on Replevin, in speaking of description, uses the following language: “What
The further contention of the appellant is also clearly correct, namely: that as it affirmatively appears from the complaint that the propeity sought to be recovered was not in the possession of the defendant at the time the action was commenced, this action cannot be maintained. It will be noticed that in the complaint it is alleged that the defendant has delivered to the Hamm Brewing Company not only the property described in the complaint and affidavit in claim and delivery, but also the property claimed by the plaintiff in this action. The action of claim and deliveiy is instituted for the purpose of recovering possession from a party of personal property alleged to be in his possession, and when it affirmatively appears that the property is not in the possession of the part}'’ then the action of claim and delivery will not lie, and the plaintiff must seek redress in some other form of action. Cobbey on Replevin, § 61. Mr. Wells in his work before referred to in speaking on this subject says: "It is also a rule in replevin that the action only lies against a defendant who is in possession of the goods at the time the demand is made or suit is begun. In order to hold a party liable for the immediate delivery of the goods, he must have the actual or constructive possession of them at the time so
We have not overlooked the other objections specified by counsel in their brief, but in the view we have taken of the case we do not deem it necessary to discuss them in this opinion.
The order of the court below overruling defendant’s demurrer is reversed.