Kingsbury v. Copren

187 P. 728, 43 Nev. 448

• Court: Nevada Supreme Court
• Decided: January 15, 1920
• Docket: No. 2420
• Status: Published

Opinions

By the Court,

Coleman, C. J.:

This is an action in .claim and delivery, or replevin, as known at common law.

‘As appears from the title of the action, it was instituted against the defendant both in his individual and representative capacities. The complaint alleges the death of Higgins and the appointment and qualification of Copren as administrator of the estate of the deceased. It is then alleged that at the time of bringing the suit plaintiff was, and for a long time prior thereto had been, the owner of a certain diamond ring and stick-pin, of the aggregate value of $1,100. It is then alleged:

“IV. That on the 6th day of January, 1919, at the city of Reno, county of Washoe, State of Nevada, the said defendant wrongfully obtained and came into possession of said personal property by falsely representing to plaintiff that he would promptly return the same; that he had made application for letters of administration of the estate of Thomas J. Higgins, deceased; that it was necessary for him to have the possession of said property in order to satisfy all persons interested in said estate that all property heretofore owned by said deceased was being properly administered; that plaintiff was ignorant of the requirements of such administration and delivered said property to said defendant, in faith upon his promise to promptly return the same, and said defendant did promise to promptly return the same, but ever since and still retains the possession thereof, and has neglected and refused and still neglects and refuses to deliver the same to plaintiff, and thereafter listed and described the same in the inventory and appraisement of the estate of Thomas J. Higgins as the property of said estate, and claims the same as property thereof.”

The complaint then alleges that plaintiff demanded of defendant the possession of said personal property, but that he refused, and still refuses, to deliver the same to her. It is also alleged that the personal property in question was not taken for a tax, assessment, or.fine pursuant to statute, or seized under any execution or j udgment against the property of the plaintiff.

The complaint concludes with the usual prayer for possession of the personal property in question, or, in case possession cannot be had, for damages.

To the complaint a demurrer was filed, setting forth four grounds, one being that the complaint is ambiguous and uncertain in that- — ■

“It cannot be understood from said complaint whether the defendant in this action is being sued personally or whether he is being sued in his official capacity. Nor does it state whether or not judgment is desired from the personal estate of the defendant or from the estate he is officially managing.”

The court sustained the demurrer upon the ground of uncertainty. Plaintiff declining to amend her complaint, judgment was entered in favor of defendant for his costs. From this judgment an appeal has been taken.

1. To the contention of respondent, as stated in the first sentence of the matter which we have quoted from the demurrer, we think we need devote but little consideration. It is clear that the defendant was actually sued both as an individual and as administrator. This is not a ground of demurrer for uncertainty or ambiguity. If defendant is improperly joined in two capacities, or if the complaint fails to state a cause of action against him in either of the capacities in which he is sued, it may be that the demurrer should have been sustained upon one or more of the other grounds stated therein.

2. The complaint does not state nor undertake to state a cause of action against the defendant as an individual, but it does undertake to state a cause of action against him as administrator. We held in the recent case of Nielsen v. Rebard, 43 Nev. 274, 183 Pac. 984, that to state a cause of action in replevin it must be shown that the specific property is in possession of the defendant at the time of bringing the suit. Nowhere in the complaint is there a statement of a fact from which it might be inferred that plaintiff sought to charge that defendant had possession of the property in question in his individual capacity. On the other hand, the allegation of the complaint negatives that idea, wherein it is charged that the defendant “thereafter listed and described the same [the property in question] in the inventory and appraisement of the estate of Thomas J. Higgins as the property of said estate, and claims the same as property thereof.”

3, 4. While it is true that in some circumstances a defendant may be sued both as an individual and as administrator, it is also true that when so sued the complaint must state a cause of action against the party in both capacities, or suffer the consequences. In the very nature of things, the defendant could not hold possession of the personal property in question both as an individual and as administrator, nor could plaintiff charge the defendant with holding the property in both capacities, because such an allegation would be inconsistent as to a matter of fact. Nelson v. Smith, 42 Nev. 302, 176 Pac. 261, 178 Pac. 625.

5. And the mere fact that defendant knows in which capacity he claims the property would not relieve the plaintiff from the necessity of alleging in which capacity he holds it; for, while it is a general rule that facts peculiarly within the knowledge of the defendant do not have to be alleged by the plaintiff with the same degree of exactness as if such were not the fact, when the matter is such that its allegation “is essential to the apparent or prima facie right of recovery,” this rule has no application. 21 R. C. L. 486.

6. In view of the allegation of the complaint, from which it appears (1) that the defendant listed and described the property in question as the property of the estate, and (2) that he claims it as property thereof, and of the further fact that there is a total absence of any allegation that the defendant holds or claims the property as an individual, we think it cannot be said that the complaint is uncertain or ambiguous as to the capacity in which the complaint charges the defendant with holding the property.

It follows that the j udgment must be reversed.

It is ordered that the judgment be reversed, with instructions to the lower court to permit the plaintiff to reform her complaijnt in such manner as she may be advised.