I concur in the result. I am compelled to this conclusion because the complaint does not allege that, after the defendants made their claim to the property, a jury was impanelled to try the validity of the claim and that the sheriff delivered the property to the defendants pursuant to the finding of the jury upon such false and fraudulent claim and upon the failure of the plaintiff to give an undertaking. If such an allegation was contained in the complaint, I think an entirely different situation would be presented. The opinion of Hr. Justice Giegerich- very clearly points out that the complaint in its present form does not make it appear that the sheriff lawfully delivered the property to the defend" ants. If the sheriff unlawfully delivered the property to the defendants, the plaintiff would have his remedy against the sheriff and not against the defendants. If the delivery to the defendants was made pursuant to section 1418 and 1419 of the Code of Civil Procedure, the interesting question which the plaintiff’s counsel seeks to raise would be fairly presented. While we are to construe the pleading liberally and the facts stated in the complaint are admitted by the demurrer, we cannot assume the existence of facts which are not pleaded. It would not be proper at this time, in view of the present condition of the complaint, to discuss the question which the counsel for the plaintiff seeks to raise.
The judgment should be reversed, and plaintiff’s counsel may be able fairly to present the question he seeks to raise by an amendment to his complaint.
Judgment reversed.