Willis v. De Witt
| Decision Date | 07 September 1892 |
| Citation | 52 N.W. 1090,3 S.D. 281 |
| Parties | Willis v. De Witt. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The distinction recognized at common law, between the action of replevin and detinue, does not exist in this state, as the Code, having abolished all forms of pleading existing prior to the Code, necessarily abolished the distinction between these actions; and the action to recover personal property takes the place of, and is a substitute for, both the former actions of replevin and detinue.
2. The primary object of the actions of replevin and detinue was to recover the possession of specific personal property, and the gist of the action, in either form, was the unlawful detention of the property at the commencement of the action. The action to recover personal property under our Code has the same object in view,--the recovery of the possession of the property,--and the unlawful detention is the gist of the action.
3. It is not material in the action to recover the possession of personal property how the defendants acquired the possession so far as the action to recover the property is concerned. The principal issues in this action are the plaintiff's right to possession, the defendants' unlawful detention the value of the property, and damages for its detention.
4. An amendment to the complaint, in an action to recover the possession of personal property, adding thereto an allegation that the defendants unlawfully and wrongfully took the property from the possession of the plaintiff, when it is alleged in the original complaint that the plaintiff is the owner and entitled to the possession of the property, and that the same is unlawfully detained by the plaintiff, is an immaterial amendment, and authorizes no judgment that could not have been rendered under the original complaint.
5. To enable a plaintiff to maintain his action for the recovery of the possession of personal property, the defendant must have either the actual or constructive possession of the property at the time the action is instituted.
Appeal from circuit court, Kingsbury county; J. O. ANDREWS, Judge.
Action by George Willis against A. H. De Witt and N. T. Davis to recover specific personal property. From a judgment for plaintiff, defendant De Witt appeals. Reversed.
Melville & Langley, for appellant. Schenian & Dunlap, for respondent.
This was an action to recover specific personal property originally commenced against All. H. De Witt and N. T. Davis. Judgment was rendered for plaintiff, and defendant De Witt appeals. The plaintiff alleged in his original complaint that he was the owner and entitled to the immediate possession of the personal property described in the complaint, and that the possession thereof was wrongfully and unlawfully detained from him by said defendants. A demand and refusal was also alleged, and a prayer for judgment was added in the usual form in actions to recover personal property. No demurrer or answer having been served by either of the defendants judgment was rendered against both, as provided in Comp. Laws, § 5099. Subsequently on motion, supported by affidavits on the part of the defendant All. H. De Witt, he was allowed to answer, and he thereafter served an answer, denying each and every allegation of the complaint. The action was referred to P. C. Truman, as referee, who found the facts and stated his conclusions of law thereon. The third finding of fact is as follows: The fifth finding of fact is as follows: The second conclusion of law is as follows: The third conclusion of law is as follows: "I further find that the plaintiff was allowed without objection to prove the unlawful taking of the property in controversy." A motion was made to the referee, by the counsel for plaintiff, for leave to amend the complaint to conform to the facts proved and found by the referee, by alleging in the complaint the wrongful and unlawful taking of the property from the possession of the plaintiff by De Witt and his codefendant, Davis. This motion was denied by the referee, but was subsequently renewed to the court and granted.
It will be noticed that the action was originally commenced upon the theory that both of the defendants were in possession of the property, and wrongfully and unlawfully detained the same from the plaintiff. And it will be further noticed that by the fifth finding of fact the referee found that the defendant All. H. De Witt was neither in possession when the action was commenced, nor at any time subsequently, though the referee in his third finding does find that defendant De Witt, with his codefendant, Davis, wrongfully and unlawfully took said property from the possession of the plaintiff.
1. The learned counsel for the appellant contend: (1) That upon the facts found by the referee, in his fifth finding, the defendant De Witt was entitled to judgment in his favor, as the action to recover specific personal property cannot be maintained against one not in the actual or constructive possession of the property sought to be recovered at the time the action is commenced; and (2) that the amendment allowed by the court to be made to the complaint was not one that could properly be made under section 4938 of our Code, as the amendment, in effect, constituted a new cause of action.
The learned counsel for the respondent controvert both these propositions. As to the first, they insist that the plaintiff could have recovered the value of the property against the defendant All. H. De Witt, upon the original complaint, without any amendment, as De Witt, having taken the property, in connection with his codefendant, Davis, wrongfully and by force, from the possession of the plaintiff, was liable for the value of it, the same as he would have been liable for the return of it, had it been in his possession at the time of the commencement of the action; and that, the property having been taken by force, the right of plaintiff to recover the value did not depend upon the retaining possession to the time of the commencement of the action.
As to the second proposition, they insist that no new cause of action was added to the complaint by the amendment, as the action after the amendment was for the possession of the property, or its value, if a return could not be had, and that the object both of the original and the amended complaints was the recovery of the property, or the value thereof. The counsel for the respondent seem to have proceeded, in taking judgment against De Witt, upon the theory that while they might be precluded, by the fifth finding of the referee, from taking judgment against him for the possession of the property, they might to so for the value, under the third finding; and the amendment to the complaint seems to have been made for the purpose of adding an allegation of the facts found by the referee to the original complaint, that would authorize the entry of the judgment against De Witt for the value. At common law replevin was the form of action adopted when a party sought to recover the possession of specific personal property where the original taking was wrongful, as well as the subsequent detention. When, however, the defendant came rightfully into the possession of the property, but unlawfully detained it subsequently, from the party entitled to the possession, it could only be recovered in an action of detinue. But in both actions the object was the same,--the recovery of the possession of the specific personal property, and the gist of the action in each case was the unlawful detention. Neither action could, therefore, be maintained unless the property sought to be recovered was in the actual or constructive possession of the defendant at the commencement of...
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