Kramlich v. Tullock , 84 Mont. 601 ( 1929 )

I agree with the result announced in the foregoing opinion but not with all that is stated in it. In so far as the opinion holds that the complaint does not state facts sufficient to constitute a cause of action, I disagree with it.

It is true, as stated therein, that plaintiff's complaint is based upon the claim and delivery statute. Defendant did not demur to the complaint, either generally or specially. The object of definiteness in a complaint is to notify the defendant of the facts the pleader expects to prove so as to enable him to prepare his defense, and so that any judgment obtained may be pleaded as a bar to another action involving the same subject matter (Kozasa v. Northern P. Ry. Co., 61 Mont. 233,201 P. 682; Smallhorn v. Freeman, 61 Mont. 137, 201 P. 567), and omitted allegations in a complaint may be supplied by the answer. (Schauer v. Morgan, 67 Mont. 455, 216 P. 347.)

The objection to the complaint in this action for insufficient description or identification of the money sued for, if not waived by the defendant for failure to demur specially (sec. 9136, Rev. Codes 1921), was cured by the allegations of the answer. The answer alleged the circumstances under which defendant obtained the possession of the $600 demanded in the complaint, and alleged that "this defendant holds the said sum of money for the purpose of applying it upon the judgment obtained" in a certain action. It is worthy of note, also, that defendant's witness Linn, a deputy sheriff, testified as follows: "Q. Is the money still in the sheriff's office, Mr. Linn? * * * A. Yes, it is in the possession of the sheriff."

The issues raised by the answer were those pertaining only to the right of possession of the money in question. The case is identical in principle with that of Eaton v. Blood,201 Iowa, 834, 44 A.L.R. 1516, 208 N.W. 508, where the supreme court of Iowa held that replevin was a proper action to recover a bank account where defendant in the answer admitted possession of the property. The court in that case said: "Defendant contends that replevin will not lie. Replevin for a bank account is somewhat novel, though such cases have not been altogether unknown to the trial courts. The savings account sought to be recovered here may be construed to include the pass-book. It was admitted in the answer that the defendant received and has in his possession the property described in the petition. The defense is a denial that plaintiff is entitled to possession. The order of the probate court previously referred to was not such a judgment or process as would preclude the plaintiff from maintaining an action of replevin. It results from the foregoing discussion that the question presented is one of the right of possession, and that plaintiff is entitled to it."

Furthermore, so far as this case is concerned, the complaint states facts sufficient to constitute a cause of action for conversion. Defendant treated it as such throughout the trial. His counsel in their brief make the statement: "The complaint is a straight action in conversion." An action lies for the conversion of money if sufficiently described. Thus it has been held that a complaint describing money as "the money obtained by defendant for the sale of, to-wit: plaintiff's three-quarters interest in, to-wit: 15 bales of cotton," was not demurrable for insufficient description of the money. (Howton v. Mathias,197 Ala. 457, 73 So. 92.) And the supreme court of Wisconsin has held that the money of one person converted by, and mingled with that of, another may be recovered in conversion. (Regas v.Helios, 176 Wis. 56, 186 N.W. 165.) A complaint for the conversion of "$1,850 in cash" has been held a sufficient description of the property. (Dunham v. Cox, 81 Conn. 268,70 A. 1033.)

In Ramirez v. Main, 11 Ariz. 43, 89 P. 508, it was held that a complaint to recover "$5,950, money of the Republic of Mexico," was good as against a general demurrer and that the objection, if good, should have been presented by special demurrer.

In Williams v. Williams, 112 Me. 21, Ann. Cas. 1916D, 928, 90 A. 500, the complaint filed in 1910 was in conversion to recover $18,750, or the one-third of $56,250, which had been delivered to defendant in 1900 for the purpose of purchasing certain property. The court, in holding that trover was maintainable, said: "The defendant has argued, under his motion, that this action of trover is not maintainable, because the identical money which came into the defendant's hands from the sale of the quarry in 1900 is not specified. The identical money could not be specified in this case. The defendant deposited the money received in his own name on interest with the authority of the testator. It could not thereafter be identified. Money may be the subject of an action of trover, and in the declaration for the alleged conversion of money it is not necessary to set out the money verbatim, a description of it in general terms being sufficient. All that is required we think is that the property should be described with as much reasonable certainty as the nature of the case will permit so that it may be known what property is meant, and that the defendant may be protected against another suit for the same cause of action."

In this state the common-law forms of action have been abolished and there is but one form of civil action. (Const., Art. VIII, sec. 28; sec. 9008, Rev. Codes 1921.) While it is true, as stated in the majority opinion, that the reasons underlying the causes of action remain the same and that plaintiff may not recover beyond the case stated by him in his complaint; yet it is immaterial what designation plaintiff may have given to his cause of actions (Hillyer v. Eggers,32 Cal. App. 764, 164 P. 27.)

The courts, under our Practice Act, should look to the substance, rather than the form, of the action. (1 C.J. 1008.) Hence, while I agree with most of the abstract principles of law announced in the majority opinion, many of them have no application to the facts presented in this case, and in my opinion the objection to the introduction of testimony upon the ground that the complaint does not state facts sufficient to constitute a cause of action, under the pleadings here presented, was without merit.

Rehearing denied May 22, 1929.