Willis v. De Witt

Citations

• 3 S.D. 281
• 52 N.W. 1090
• 1892 S.D. LEXIS 69

Syllabus

<p>1. The distinction recognized at common law, between the action of replevin and detinue, does not exist in this state, as the Code, having abolished all forms of pleading existing prior to the Code, necessarily-abolished the distinction between these actions; and the action to recover personal property takes the place of, and is a substitute for, both the former actions of replevin and detinue.</p> <p>2. The primary object of the actions of replevin and detinue was to recover the possession of specific personal property, and the gist of the action, in either form, was the unlawful detention of the property at the commencement of the action. The action to recover personal property-under our Code has the same object in view, — the recovery of the' possession of the property, — and the unlawful detention is the gist of the G- action.</p> <p>8. It is not material in the action to recover the possession of personal property how the defendants acquired the possession, so far as the action to recover the property is concerned. The principal issues in this action are the plaintiff's right to possession, the defendant’s unlawful detention, the value of the property, and damages for its detention.</p> <p>4. An amendment to the complaint, in an action to recover the possession of personal property, adding thereto an allegation that the defendants unlawfully and wrongfully took the property from the possession of the plaintiff:, when it is alleged in the original complaint that the plaintiff is the owner and entitled to the possession of the property, and that the same is unlawfully detairied by the plaintiff, is an immaterial amendment, and authorizes no judgment that could not have been rendered under the original complaint.</p> <p>5. To enable a plaintiff to maintain his action for the recovery of the possession of personal property, tho defendant must have either the actual or constructive possession of the property at the time the action is instituted.</p> <p>(Syllabus