
    CHAMBERS v. EMERY.
    No. 2020.
    Decided September 11, 1909
    (103 Pac. 1081).
    Replevin — Actions — Complaint — Possession. In claim and delivery plaintiff must allege that be was tbe owner, or entitled to possession, at tbe commencement of tbe action; it being insufficient to merely aver that be was tbe owner at some time prior tbereto. (Page 381.)
    Appeal from District Court, Third District; Hon. T. I). Lewis, Judge.
    Action by Mary Etta Chambers against C. E. Emery.
    Judgment for plaintiff. Defendant appealed.
    REVERSED, AND NEW TRIAL ORDERED, WITH LEAVE TO-AMEND.
    
      E. A. Walton for appellant.
    
      Tafoner & Tanner for respondent.
    
      
      
         Savings Bank v. Peterson, 30 Utah 475.
    
   McCARTY, J.

This is an action in claim and delivery. The allegations of the complaint, so far as material here, are as follows: “That on the 5th day of December, 1907, . . . plaintiff was the owner in her own right and in the possession of the following goods and chattels of the value of one hundred dollars, to-wit five hogs;” that on that day defendant unlawfully took said property from the possession of plaintiff; that on the 6th day of December plaintiff demanded of defendant the return of the property; “that defendant still unlawfully withholds and detains said goods and chattels.”' The complaint was filed December 7, 1907. The complaint. does not allege that plaintiff was the owner of and entitled to the possession of the property therein described at the time the action was commenced. Defendant answered, and a trial was had to a jury which resulted in a verdict in favor of plaintiff. From the judgment rendered on the verdict, defendant appeals.

When the case came on for trial, defendant objected to the introduction of any evidence by plaintiff on the ground “that the complaint does not state facts sufficient to constitute a cause of action.” The .action of the court in overruling the objection is assigned as error. It is contended that the complaint is fatally defective because it contains no allegation of ownership or right of possession in plaintiff at thé time the action was commenced. This same question was before this court in the case of Savings Bank v. Peterson, 30 Utah 475, 86 Pac. 414, 116 Am. St. Rep. 862. In that case the allegations of ownership and right of possession in plaintiff of the property involved, and the wrongful taking and detention of it by defendant, were substantially the same as the corresponding allegations in the complaint before us. In that case, as here, there was no allegation that the plaintiff was entitled to the possession of the property at the time the suit was' commenced. In the course of the opinion Mr. Justice Straup, speaking for the court, says:

“In a suit to recover personal property the complaint must show the ultimate fact that the plaintiff was the owner or entitled to the possession at the time of the commencement of the action; and it is not sufficient to merely aver that he was the owner or entitled to possession at some period prior to that time.”

The rule as there announced is supported by the weight of authority. In 18 Ency. PL & Pt. 536, the rule is stated as follows:

“Since the gist of the action of replevin is the right of possession, the declaration or complaint must contain an averment that the plaintiff is the owner of the property, or that the title is in him, or that the right of possession is in him at the commencement of the suit.”

Under tbe rule as declared in tbe case of Savings Bank v. Peterson, supra, wbicb seems to be in harmony with tbe current of authority, tbe complaint in tbe case at bar is insufficient, and tbe court erred in admitting evidence in support of tbe allegation therein contained.

Appellant also complains of and assigns as error certain instructions given by tbe court to tbe jury, but we do not think these assignments. contain sufficient merit to warrant a discussion of tbe points therein raised.

Tbe judgment is reversed, with directions to tbe trial court to permit tbe parties to amend their pleadings, should they so desire, costs of this appeal to be taxed against respondent.

STRAUP, C. J., and FRICK, J., concur.  