Riciotto v. Clement

Citations

• 94 Cal. 105
• 29 P. 414
• 1892 Cal. LEXIS 647

Syllabus

<p>Claim and Delivery — Goods Sold under Execution.—An action o£ claim and delivery will not lie against a constable who has sold the goods under execution and parted with the possession of them before the commencement of the action.</p> <p>Id.—Action Distinguished from Trover—Present Possession.—In what is called trover, present possession of the property is immaterial, but the relief sought in claim and delivery cannot be had from the defendant unless he is then possessed of the property, which fact constitutes an essential element in the cause of action.</p> <p>Id.—Statutory Remedy—Wrongful Detention.—Claim and delivery is a statutory remedy provided to enable one to recover the possession of personal property wrongfully detained, with an alternative remedy if possession cannot be had.</p> <p>Id. —Pleading — Recovery for Conversion — Amendment. —There can be no proper recovery for a conversion upon a complaint stating a cause of action in claim and delivery; though perhaps if it were found, after suit brought, that the defendant had wrongfully disposed of the property before suit, the plaintiff might be allowed to amend, so as to claim damages for a wrongful taking or conversion.</p>