Fredericks v. Tracy

Citations

• 98 Cal. 658
• 33 P. 750
• 1893 Cal. LEXIS 973

Syllabus

<p>Claim and Delivery—Pleading—Right of Possession at Time of Commencement of Action.—To sustain an action of claim and, delivery the plaintiff must have the right to the immediate and exclusive possession of the property at the time of the commencement of the action, and a complaint in such action averring that on a day two days prior to the commencement of the action, plaintiff was the owner and entitled to the immediate possession of the property, and that defendants refused to deliver the property upon demand made on the day of the commencement of the action, and unlawfully withhold possession, etc., does not state a cause of action.</p> <p>Id.—Ultimate Facts—Presumption of Continuance of Right—Evidence.— It is a cardinal principle in pleading that ultimate and not probative facts are to be pleaded; and though the fact that plaintiff was the owner and entitled to the possession of the property at a previous date is evidence from which the ultimate fact may he deduced by a presumption of continuance of the right, yet that principal has no application to the statement of facts in a pleading, and cannot dispense with the allegations of the ultimate fact of right of possession at the time of the commencement of the action.</p>