187 P. 728 | Nev. | 1920
Lead Opinion
By the Court,
This is an action in .claim and delivery, or replevin, as known at common law.
‘As appears from the title of the action, it was instituted against the defendant both in his individual and representative capacities. The complaint alleges the death of Higgins and the appointment and qualification of Copren as administrator of the estate of the deceased. It is then alleged that at the time of bringing the suit plaintiff was, and for a long time prior thereto had been, the owner of a certain diamond ring and stick-pin, of the aggregate value of $1,100. It is then alleged:
“IV. That on the 6th day of January, 1919, at the city of Reno, county of Washoe, State of Nevada, the said defendant wrongfully obtained and came into possession of said personal property by falsely representing to plaintiff that he would promptly return the same; that he had made application for letters of administration of the estate of Thomas J. Higgins, deceased; that it was necessary for him to have the possession of said property in order to satisfy all persons interested in said estate that all property heretofore owned by said deceased was being properly administered; that plaintiff was ignorant of the requirements of such administration and delivered said property to said defendant, in faith upon his promise to promptly return the same,*452 and said defendant did promise to promptly return the same, but ever since and still retains the possession thereof, and has neglected and refused and still neglects and refuses to deliver the same to plaintiff, and thereafter listed and described the same in the inventory and appraisement of the estate of Thomas J. Higgins as the property of said estate, and claims the same as property thereof.”
The complaint then alleges that plaintiff demanded of defendant the possession of said personal property, but that he refused, and still refuses, to deliver the same to her. It is also alleged that the personal property in question was not taken for a tax, assessment, or.fine pursuant to statute, or seized under any execution or j udgment against the property of the plaintiff.
The complaint concludes with the usual prayer for possession of the personal property in question, or, in case possession cannot be had, for damages.
To the complaint a demurrer was filed, setting forth four grounds, one being that the complaint is ambiguous and uncertain in that- — ■
“It cannot be understood from said complaint whether the defendant in this action is being sued personally or whether he is being sued in his official capacity. Nor does it state whether or not judgment is desired from the personal estate of the defendant or from the estate he is officially managing.”
The court sustained the demurrer upon the ground of uncertainty. Plaintiff declining to amend her complaint, judgment was entered in favor of defendant for his costs. From this judgment an appeal has been taken.
It follows that the j udgment must be reversed.
It is ordered that the judgment be reversed, with instructions to the lower court to permit the plaintiff to reform her complaijnt in such manner as she may be advised.
Rehearing
On Petition for Rehearing
By the Court,
The respondent asks for a rehearing, and assigns as grounds thereof: (1) That we overlooked the fact that the complaint asks relief of the defendant without designating in which capacity it is sought; and (2) because the order of reversal directed the lower court to permit appellant to amend her complaint as she may be advised.
As to the second point made, it may be that we might as well have made no order as to an amendment; but we think it goes without saying that any amendment which may be made must be in accordance with the law. Such was the view we entertained at that time.
At least one question is presented by the record in this case which we were not called upon to determine because not assigned as error; but we think from what we did say it can be inferred what our ruling would have been had the point been presented. The law is clear, and a disregard of it will simply entail useless expense.
Petition for rehearing is denied.