DocketNumber: No. 6,435.
Citation Numbers: 277 P. 411, 84 Mont. 601
Judges: MR. CHIEF JUSTICE CALLAWAY delivered the opinion of the court.
Filed Date: 5/4/1929
Status: Precedential
Modified Date: 1/12/2023
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 *Page 610
matter (Kozasa v. Northern P. Ry. Co.,
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,
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,
In Ramirez v. Main,
In Williams v. Williams,
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,
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. *Page 613