84 Cal. 476 | Cal. | 1890
This is an action of claim and delivery. The complaint alleges that on the tenth day of October, 1888, the defendant, Howard B. Porter, filed in court his petition in insolvency, and thereafter such proceedings were had that plaintiff was duly appointed his assignee, and qualified as such, and thereupon the clerk of the court duly assigned to him all the estate, real and personal, of the insolvent debtor; “that at the time of filing said petition said defendant was, and long prior thereto had been, and still is, the owner and in possession of a certain quantity of hay, to wit, one hundred and
The defendant demurred to the complaint, and his demurrer being overruled, answered. The answer denies that defendant is, or ever was, at any of the times named in the complaint, the owner, or in the possession or entitled to the possession, of the hay sued for, or any part thereof, and it disclaims, on the part of defendant, “ any title to or interest in said hay in any way or to any ^extent whatsoever, or any right or title to the possession thereof, during any of the time or times alleged in the complaint, or at.all." It further denies that plaintiff is entitled to the possession of the hay, or that defendant ever withheld possession or refused to deliver possession thereof to him.
The plaintiff moved for judgment on the pleadings upon the grounds, — 1. That the answer did not state facts sufficient to constitute a defense; 2. That it did not raise any material issue; 3. That the defendant disclaimed any right, title, or interest in the property sued for. The court granted the motion, and the appeal is from the judgment thereupon entered.
1. The theory on which the action was brought evidently was, that the defendant was the owner of the,, hay in question at the time he commenced his proceedings in insolvency, and had wrongfully omitted it from his schedule, and that the title to the hay vested in the plaintiff, under the assignment made to him by the clerk, and that he thereby became entitled to demand and recover its possession.
The complaint was somewhat crudely drawn. It alleges the assignment, and then that the defendant still
Under these circumstances, the plaintiff was not entitled to a judgment on the pleadings, the rule being settled that “it is only where an answer admits or leaves undenied the material facts stated in the complaint that a judgment can be rendered on the pleadings.” (Botto v. Vandament, 67 Cal. 332.)
2. The judgment was, that the “plaintiff do have and recover of and from the defendant the possession of all the personal property described in the complaint, to wit, one hundred and twenty tons of hay.” No costs were awarded the plaintiff, and the judgment was not in the alternative form. It is claimed, therefore, for respondent, that the defendant was in no way “aggrieved” by the judgment, and hence had no right to appeal from it. This claim cannot be sustained. If the case had been tried, and the denials of the answer sustained, the proper judgment xvould have been, that the plaintiff take nothing, and that defendant recover his costs. Having been brought into court against his will, and required to contest the case, the defendant should not be turned out without
The judgment should be reversed, and the cause remanded for a new trial.
Hayne, C., and Foote, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for a new trial.