Almada v. Vandecar

• Decision Date: 30 December 1919
• Citation: 185 P. 907,94 Or. 515
• Parties: ALMADA v. VANDECAR.
• Court: Oregon Supreme Court

185 P. 907

94 Or. 515

ALMADA v. VANDECAR.

Supreme Court of Oregon

December 30, 1919

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Replevin action by Joseph Almada against Byron Vandecar. From an order setting aside a verdict for plaintiff and granting defendant a new trial, with permission to plaintiff to amend his complaint, the plaintiff appeals. Order affirmed, and cause remanded for a new trial with permission to plaintiff to amend.

This is an action in replevin. There was a verdict and judgment for the plaintiff. The defendant moved for a judgment notwithstanding the verdict; and, based upon that motion, the court set aside the verdict and judgment for the plaintiff and granted a new trial with permission to the plaintiff to amend his complaint. The plaintiff appealed.

The only questions presented upon this appeal arise out of the complaint filed by the plaintiff and, for that reason, the pleading is here transcribed in full:

"That on or about the 1st of April, 1916, at Baker county, Or the plaintiff was the owner of one four year old steer branded ______, and of the value of $125.

"That the defendant on the 1st of April, 1916, in Baker county Or., without the plaintiff's consent and wrongfully took said steer from the possession of the plaintiff.

"That before the commencement of this action, to wit, on the 27th day of November, 1918, the plaintiff demanded of the defendant possession of said steer.

"That said defendant still unlawfully withholds and detains said steer, at said defendant's ranch, about four miles from the town of Durkee, Baker county, Or., from the possession of plaintiff, to his damage in the sum of $50."

The defendant demurred to the complaint upon the ground that it "does not state facts sufficient to constitute a cause of action"; but afterwards, the attorneys for both parties "now consenting and agreeing," the court entered an order overruling the demurrer and allowing defendant until January 30, 1919, within which to file his answer.

Within the time fixed by the order, the defendant filed an answer denying all the allegations of the complaint and alleging new matter as a separate defense. The affirmative allegations were to the effect that long prior to the commencement of the action the defendant purchased the ranch mentioned in the complaint together with about 500 head of stock cattle; that the steer claimed by the plaintiff "was one of the band of stock cattle purchased by defendant"; and that the defendant has been the owner and in possession of the steer since the alleged purchase. The evidence showed that one Vaughn was the person from whom the ranch and cattle were purchased.

The reply denied all the affirmative allegations appearing in the answer. A trial resulted in a verdict for the plaintiff. The defendant moved for a judgment notwithstanding the verdict alleging in the motion that--

"The complaint in said action failed to show and allege the ultimate fact that the plaintiff in said action was the owner or entitled to possession of the personal property involved in said action at the time of the commencement thereof. * * *"

After hearing the motion, the court set aside the verdict and judgment, granted a new trial, and allowed the plaintiff 30 days within which time to serve and file an amended complaint.

M. D. Clifford, of Baker, for appellant.

C. H McColloch and James H. Nichols, both of Baker, for respondent.

HARRIS, J. (after stating the facts as above).

The objection that the complaint does not state sufficient facts to constitute a cause of action is never waived, and may be raised for the first time in the appellate court, or it may be urged here, even though a demurrer has been filed in the trial court and overruled with the consent of the parties. Hargett v. Beardsley, 33 Or. 301, 54 P. 203.

Replevin is essentially a possessory action. The primary right which the moving party seeks to enforce in this action is the right of immediate possession, and unless he is entitled to such possession he has no right to enforce. In this, as in other...