Ladson v. Mostowitz

• Decision Date: 17 October 1895
• Citation: 45 S.C. 388,23 S.E. 49
• Court: South Carolina Supreme Court
• Parties: LADSON et al. v. MOSTOWITZ et al

23 S.E. 49

45 S.C. 388

LADSON et al.

v.MOSTOWITZ et al

Supreme Court of South Carolina.

Oct. 17, 1895.

Claim and Delivery—Pleading.

1. A complaint for claim and delivery is not demurrable if the facts stated are sufficient to constitute any cause of action against the defendants.

2. A complaint for claim and delivery, which alleges that defendant A. wrongfully took a horse from the possession of plaintiff, and sold it to defendant B., and that "defendants still unjustly detain" the said property, states a good cause of action against A., but not against B.; there being no allegation of a demand upon him for the property, nor any allegation that he had knowledge that A. had wrongfully taken the horse from plaintiff.

Appeal from common pleas circuit court of Beaufort county; Ernest Gary, Judge.

Action by Diana Ladson and others against M. Mostowitz and another for claim and delivery of personal property. Each defendant filed a separate demurrer to the complaint, and from an order overruling both demurrers defendants appeal. Modified.

Following are the complaint and exceptions referred to in the opinion:

"The plaintiffs, complaining of the defendants, allege: (1) That the plaintiffs Alice Ladson, Susanna Ladson, Mary Ladson, Lucy Ladson, Joseph Ladson, and Laurena Ladson are infants under the age of twenty-one years. (2) That on the 2d day of July, 1894, at Beaufort, S. C, the said Kate Ladson was duly appointed by the judge of probate of this county guardian of said infant plaintiffs, for the purposes of this action. (3) That at the times hereinafter mentioned the plaintiffs were, and still are, the owners of one bay mare, called 'Clara, ' worth $100, and one bay colt, called 'Lillie, ' worth $75, and were then in lawful possession thereof. (4) That on the 9th day of May, 1S94, at or near Kean's Neck, in this county, the defendant M. Mostowitz wrongfully took said mare and colt from the possession of these plaintiffs; that he subsequently sold the mare to the defendant Prime White; and the defendants still unjustly detain the said mare and colt, to the damage of the plaintiffs two hundred dollars. Wherefore, plaintiffs demand judgment against the defendants for the recovery of the possession of said mare and colt, or for the sum of one hundred and seventy-five dollars, the value thereof, in case a delivery cannot be had, together with two hundred dollars, their damages, and for the costs of this action."

"For the purposes of appeal in the above-stated case, the defendants except as follows:

(1) Because the circuit judge erred in holding that the complaint herein did state facts sufficient to constitute a cause of action as to each of the defendants, and in overruling the demurrers of the respective defandants.

(2) Because the complaint was against the defendants jointly, but failed to show any joint action on their part; on the contrary, showed separate and individual action on the part of the defendants, respectively. (3) Because there was no allegation of joint or collusive action on the part of the defendants. (4) Because, as to the defendant Mostowitz, the complaint stated him to be out of possession of the property sued for, and, the action being one for recovery of specific personal property, it could not be maintained against one not in possession of the property sued for. (5) Because, as to the defendant Prime White, the complaint, while stating that he came into possession of the property by purchase, failed to allege demand upon him before bringing suit."

W. J. Verdier, for appellants.

Thomas Talbird, for respondents.

GARY, J. This is an action for claim and delivery of certain personal property. The defendant Prime White demurred to the complaint (which, together with appellants' exceptions, will be incorporated in the report of the case) on the ground that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action against him. The defendant Mostowitz answered, but at the trial, before reading his answer, interposed an oral demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were then heard. The circuit judge overruled both demurrers, holding that the complaint was sufficient in its statement. The defendants gave notice of intention to appeal, and the further hearing of the case was suspended to await the result of the appeal.

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