Irving v. Hubbard

Haney J. Defendants appeal from an order overruling their demurrer to the complaint on the ground that the facts stated therein are not sufficient to constitute a cause of action. [68] The language of the complaint necessary to an understanding of the questions presented by this appeal is as follows: “Plaintiff complains and alleges that on August 11, 1896, at Dell Rapids Township, Minnehaha county, State of South Dakota, the plaintiff was in possession of, and the owner of, one Deering Pony Harvester and Binder, six-foot cut. of the value of $135; that on said 11th day of August, 1896, the defendants wrongfully and unlawfully took and carried away said property, and converted and disposed of the same to iheir own use, to the damage of plaintiff in the sum of $135.’’ It is contended that plaintiff neither alleges ownership nor possession of the harvester and binder at the time the defendants are charged with haven taken it. In actions for conversion, the pleader must, of course, allege ownership or possession of the property in the plaintiff at the time it is alleged to have been taken. He has, we think, done so in this case. The allegation's of his complaint follow approved forms. 2 Estee, Pl. & Prac, § 2098; Maxw. Code Pl. 637; Sawyer v. Robertson (Mont.) 28 Pac. 456. The order appealed from is affirmed.