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Kingsbury v. Copren

December 31, 1919

VERD KINGSBURY, APPELLANT, V. JOHN V. COPREN, AND JOHN V. COPREN, AS ADMINISTRATOR OF THE ESTATE OF THOMAS J. HIGGINS, DECEASED, RESPONDENT.


Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Mack & Green, for Appellant.

Platt & Sanford, for Respondent.

By the Court, Coleman, C. J.:

This is an action in claim and delivery, or replevin, as known at common law.

As appears from the title of the action, it was instituted against the defendant both in his individual and representative capacities. The complaint alleges the death of Higgins and the appointment and qualification of Copren as administrator of the estate of the deceased. It is then alleged that at the time of bringing the suit plaintiff was, and for a long time prior thereto had been, the owner of a certain diamond ring and stick-pin, of the aggregate value of $1,100. It is then alleged:

“IV. That on the 6th day of January, 1919, at the city of Reno, county of Washoe, State of Nevada, the said defendant wrongfully obtained and came into possession of said personal property by falsely representing to plaintiff that he would promptly return the same; that he had made application for letters of administration of the estate of Thomas J. Higgins, deceased; that it was necessary for him to have the possession of said property in order to satisfy all persons interested in said estate that all property heretofore owned by said deceased was being properly administered; that plaintiff was ignorant of the requirements of such administration and delivered said property to said defendant, in faith upon his promise to promptly return the same,

[43 Nev. 448, Page 452]

and said defendant did promise to promptly return the same, but ever since and still retains the possession thereof, and has neglected and refused and still neglects and refuses to deliver the same to plaintiff, and thereafter listed and described the same in the inventory and appraisement of the estate of Thomas J. Higgins as the property of said estate, and claims the same as property thereof.”

The complaint then alleges that plaintiff demanded of defendant the possession of said personal property, but that he refused, and still refuses, to deliver the same to her. It is also alleged that the personal property in question was not taken for a tax, assessment, or fine pursuant to statute, or seized under any execution or judgment against the property of the plaintiff.

The complaint concludes with the usual prayer for possession of the personal property in question, or, in case possession cannot be had, for damages.

To the complaint a demurrer was filed, setting forth four grounds, one being that the complaint is ambiguous and uncertain in that—

“It cannot be understood from said complaint whether the defendant in this action is being sued personally or whether he is being sued in his official capacity. Nor does it state whether or not judgment is desired from the personal estate of the defendant or from the estate he is officially managing.

“The court sustained the demurrer upon the ground of uncertainty. Plaintiff declining to amend her complaint, judgment was entered in favor of defendant for his costs. From this judgment an appeal has been taken.

1. To the contention of respondent, as stated in the first sentence of the matter which we have quoted from the demurrer, we think we need devote but little consideration. It is clear that the defendant was actually sued both as an individual and as administrator. This is not a ground of demurrer for uncertainty or ambiguity. If defendant is ...


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