Phelan v. Vestner

• Decision Date: 05 July 1906
• Citation: Phelan v. Vestner, 125 Ga. 825, 54 S. E. 697 (Ga. 1906)
• Parties: PHELAN. v. VESTNER.
• Court: Georgia Supreme Court

54 S.E. 697

125 Ga. 825

PHELAN.

v.VESTNER.

Supreme Court of Georgia.

July 5, 1906.

Trover—Petition—Sufficiency.

The petition set forth a cause of action, and was not subject to the objections set up in any of the demurrers.

[Ed. Note.—For cases in point, see vol. 47, Cent. Dig. Trover and Conversion, 191-202.]

(Syllabus by the Court.)

Error from Superior Court Fulton County; J. L. Pendleton, Judge.

Action by George J. Vestner against S. H. Phelan. Judgment for plaintiff, and defendant brings error. Affirmed.

George J. Vestner brought suit against S. H. Phelan, and alleged: "That S. H. Phelan of said county is in possession of the following personalty, to wit: (1) One share of stock in the New Orleans Cotton Exchange, said share being the same transferred in blank on the back thereof by said Phelan and placed by the said Phelan in the possession of Murphey & Company, and by Murphey & Company placed in possession of A B. Baxter & Company, and by A. B. Baxter & Company placed in the possession of this petitioner, it being the same share of stock put in the possession of said S. H. Phelan by your petitioner on February 15, 1904; also, a certain certificate of membership in the New Orleans Cotton Exchange, formerly in the name of S. H. Phelan, and thereafter transferred by him to Murphey & Company, and by Murphey & Company transferred to A. B. Baxter & Company, and by A. B. Baxter & Company transferred to this petitioner, it being the same certificate of membership placed in the possession of S. fit. Phelan by your petitioner on February 15, 1904. (2) Said personalty above described is the property of your petitioner. (3) The value of the share of stock aforesaid is $5,000 and the value of said certificate of membership is also $5,000. (4) Said S. H. Phelan refuses to deliver said share of stock and said certificate of membership to your petitioner, or to pay him the profits thereof." The petition concluded with a prayer for process. The defendant filed demurrers, both general and special. The plaintiff amended bis petition by striking the allegations that it was the share of stock and certificate of membership "put into possession of S. H. Phelan by your petitioner on February 15, 1904, " and inserting in lieu thereof it was the same share of stock and same certificate of membership "unlawfully taken from the possession of your petitioner by S. H. Phelan on February 15, 1904." The amendment also alleged a demand by petitioner for the certificate of membership and share of stock. The amendment was allowed, the demurrers were overruled, and the defendant excepted.

Burton Smith, for plaintiff in error.

Rosser & Brandon, for defendant in error.

COBB, P. J. (after stating the foregoing facts). It is first necessary to determine whether the petition as originally filed set forth a cause of action. The petition comprises the following elements in its allegations: Possession of the property by the defendant, ownership by the plaintiff, value and identification of the property, and refusal to deliver the same by defendant. If the petition is looked at without regard to common-law forms of actions, it undoubtedly sets forth a cause of action. In a very similar petition in McNorril v. Daniel, 121 Ga. 79, 48 S. E. 680, this court declared: "If the plaintiff is the owner of the property referred to in the petition and the defendant is wrongfully in possession thereof, the plaintiff is...