Almada v. Vandecar , 94 Or. 515 ( 1919 )

HARRIS, J.

1. The objection that the complaint does not state sufficient facts to constitute a cause of action is never waived and may be raised for the first time in the appellate court, or it may be urged here even though a demurrer has been filed in the trial court and overruled with the consent of the parties: Hargett v. Beardsley, 33 Or. 301 (54 Pac. 203).

2-4. Replevin is essentially a possessory action. The primary right which the moving party seeks to enforce in this action is the right of immediate possession; and unless he is entitled to such possession he has no right to enforce. In this as in other actions there must be a pleading to support a judgment; and the pleading must contain allegations of fact rather than conclusions of law. A defective statement of a good cause of action will support a judgment; but a pleading which entirely omits an essential fact or facts does not- support a judgment.

5-7. Turning to the complaint involved in this appeal we observe that the plaintiff says that he owned the steer on April 1, 1916, and that the defendant at that time took the animal from the plaintiff’s possession without his consent. The action was not begun until November 30, 1918, more than two years after the alleged taking; and there is no allegation that the plaintiff'was entitled to the possession of the steer at the time of the commencement of the action, unless it can be said that the last paragraph of the complaint amounts to an averment of the right of immediate possession.

Following the ruling in Scofield v. Whitlegge, 49 N. Y. 259, this court, in Kimball v. Redfield, 33 Or. 292 297 (54 Pac. 216), held that language like the last paragraph in the complaint presented by this appeal is only a conclusion of law unmixed with the statement of any fact. A mere conclusion of law is not issuable, requires no denial, and does not aid a pleading: Klovdahl v. Springfield, 81 Or. 168, 171 (158 Pac. 668); Dickenson v. Henderson, 90 Or. 408, 411 (176 Pac. 797); 31 Cyc. 50; 21 R. C. L. 441.

Treating the last paragraph in the complaint as a pure conclusion of law, and, on that account, eliminating it from the pleading, there is left a complaint which entirely fails to allege that the plaintiff was, at the time of the commencement of the action, entitled to the possession of the animal; and, therefore, the pleading is insufficient to support a judgment.

The ruling in Kimball v. Redfield was approved in Simonds v. Wrightman, 36 Or. 120,127 (58 Pac. 1100), and it was applied and followed in Eilers Piano House v. Pick, 58 Or. 54, 57 (113 Pac. 54). Complaints exactly like the one presented here have been held insufficient in other jurisdictions: Fredericks v. Tracy, 98 Cal. 658 (33 Pac. 750); Truman v. Young, 121 Cal. 490 (53 Pac. 1073); Chan v. Slater, 33 Mont. 155 (82 Pac. 657); Chambers v. Emery, 36 Utah, 380 (103 Pac. 1081, Ann. Cas. 1912A, 332).

If the question were res integra in this jurisdiction this court as now constituted might he inclined to hold that the complaint is sufficient after a verdict and judgment; hut the prior adjudications, to which attention has been directed, have established the rule of pleading in this state, and, unless overruled, are controlling now. Regardless of what our views might be if the question were a new one, nevertheless we do not think that we are justified in overruling Kimball v. Red field and thus changing the rule of pleading which has been firmly established. The holding in Kimball v. Redfield decides the question presented upon this appeal; and, hence, the order made by the trial judge must be affirmed. The cause is remanded for a new trial with permission granted to the plaintiff to amend his complaint. Affirmed.