Jones v. Mommott

• Decision Date: 09 June 1891
• Citation: 26 P. 925,7 Utah 340
• Court: Utah Supreme Court
• Parties: CYNTHIA E. JONES, APPELLANT, v. JANE MEMMOTT, RESPONDENT

26 P. 925

7 Utah 340

CYNTHIA E. JONES, APPELLANT, v. JANE MEMMOTT, RESPONDENT

Supreme Court of Utah

June 9, 1891

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Verdict and judgment set aside, and new trial ordered.

Messrs King and Houtz and Mr. Samuel L. Page, for the appellant.

Mr. M M. Kellogg, for the respondent.

MINER J. ZANE, C. J., concurred.

OPINION

MINER, J.:

The complaint in this case was filed August 19, 1890, and alleges "that the plaintiff is, and at all times therein mentioned was, the owner of and seised in fee of lot 4, block 7, plat K, Payson City survey of building lots in Utah county, Utah Territory, etc.; that the defendant is in possession thereof, and unlawfully withholds the same from the plaintiff, to her damage in seventy-five dollars," etc. The defendant denied each allegation in the complaint. The case proceeded to a trial before a jury, whereupon the defendant attorney interposed an objection to any evidence whatever being introduced under the complaint, on the ground that the allegations in the complaint were insufficient to admit of any evidence being introduced thereunder; the defendant contending that plaintiff must allege in her complaint that, at some time prior to the commencement of the action, the plaintiff was the owner of the premises, and either in possession of or entitled to the possession of, said premises; and that the defendant either wrongfully entered into said possession, and ousted plaintiff, and still holds said possession wrongfully, or that the defendant entered into the possession of the premises lawfully, but now holds the possession wrongfully; and claim that this position is sustained in Payne v. Treadwell, 5 Cal. 310; Gladwin v. Stebbins, 2 Cal. 103. The court sustained the objection, and gave plaintiff permission to amend his complaint, which he declined to do; and thereupon, on motion of defendant's attorney, the court directed a verdict for the defendant. In this ruling, decision, and judgment thereon the plaintiff alleges error.

In this Territory, "there is but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs." Comp. Laws 1888, § 3126. And in such actions the complaint must contain "a statement of the facts constituting the cause of action in ordinary and concise language." Id. § 3219. Consequently all technical allegations and fictions peculiar to the old form of an action of ejectment are unnecessary. The ultimate facts, as they exist, should be alleged in ordinary and concise language; and only such facts need be alleged as are necessary to be proved, except to negative a positive performance of the obligation on which the action is based or to negative an inference from an act which is in itself indifferent and connected therewith. While possession does not always accompany the legal title (Id. § 2621), yet in actions to recover real property, the right of possession in this Territory is presumed to accompany the ownership within the time required by law, and the possession is presumed subordinate to the legal title. Id. § 3133. It is sufficient, therefore, in a complaint in ejectment, for the plaintiff to aver, in respect to the title, that, at the time of the commencement of the action, he was the owner of and seised in fee or for life, or for years, according to the fact, of the premises described in the complaint, and the right to the possession follows as a conclusion of law from the seizure, and need not be specifically alleged; and it should further appear from the complaint that the defendant is in possession of the premises claimed by the plaintiff, and withholds the possession thereof from the...