246 P. 345 | Cal. Ct. App. | 1926
The defendants appeal from a judgment against them as sureties on a replevin bond. The following facts appear from the findings of the court:
On December 12, 1922, Sam Caplan and I.H. Caplan commenced an action in the superior court of the state of California, in and for the county of Fresno, against one S.S. Smith. Said action was in replevin, the plaintiffs therein claiming to be entitled to the possession of certain personal property then in the possession of defendant. A *288 writ of replevin issued and the goods were seized by the sheriff and delivered to the plaintiffs. The defendant Smith filed an answer in said action, demanding the return of the property or its value, alleged to be $4,000. The plaintiffs in said action filed a replevin bond signed by Olender and Samuels, defendants herein, which bond contained the following clause: "Now therefore, we, the undersigned, residents of the said County, in consideration of the premises and of the delivery of the said property to the said plaintiffs do hereby undertake and acknowledge to the effect that we are jointly and severally bound in the sum of Eight Thousand Dollars, being double the value of said property as stated in said affidavit, for the prosecution of the said action, for the return of the said property to the said defendant, if return thereof be adjudged, and for the payment to the said defendant of such sums as may from any cause be recovered against the said plaintiffs."
Thereafter, said replevin action came regularly on for trial on April 28, 1924, and judgment was entered in favor of the defendant Smith and against the plaintiffs Sam Caplan and I.H. Caplan in the sum of $1,750, together with costs. Said judgment became final and a writ of execution issued thereon was returned unsatisfied. Demand was made upon the defendants herein as sureties on the bond to pay the amount of the judgment and they refused to do so. Smith assigned the judgment in the replevin action to plaintiff, and the defendants, on November 6, 1924, paid $721.95 upon the same, leaving a balance due thereon of over $1,200.
Incidentally, in June, 1924, a certain action was filed in the superior court of the state of California, in and for the county of Fresno, by the Caplan Finance Corporation against S.S. Smith, the defendant in the original replevin action, and his wife. In said action brought by the Caplan Finance Corporation a writ of attachment was issued and served upon Sam Caplan and I.H. Caplan, which attached all the money, goods, debts, etc., or other personal property belonging to said S.S. Smith in the possession or under the control of said Sam and I.H. Caplan. Prior to the trial of the present action said writ of attachment in the case of Caplan Finance Corp. v. Smith was dissolved by order of court. *289
The first objection made upon the present appeal is that the defendants herein are not bound to pay the amount of the judgment rendered in the prior action of Caplan v. Smith for the reason that said judgment was not entered in the alternative for a return of the property, or if return could not be had, then for the value thereof. The verdict of the jury was in the alternative, but, as recited in the findings herein, the judgment entered was merely for the value of the property. The sureties claim to have been deprived of a substantial right in that their principal may not satisfy the judgment by returning the property.
Respondent claims the instant case falls within the exception to the general rule, namely, that where it is established that the property cannot be returned, the judgment need not be in the alternative. [1] We might indulge in the presumption of the regularity of the judgment and conclude that the evidence in the replevin suit indicated that the property could not be returned were it not for the fact that the verdict of the jury was in the alternative, and as the jury is the trier of the facts, we may not presume in the face of its verdict in the alternative that the evidence demonstrated the property could not be returned.[2] And this brings us to another objection to this judgment in the replevin action, which is that it is in violation of section 664 of the Code of Civil Procedure, which provides that a "judgment must be entered in conformity to the verdict." Said section declares that "in no case is a judgment effectual for any purpose until so entered."
In Nickerson v. California Stage Co.,
The case of Field v. Lumbard,
In Gallarati v. Orser,
The case of Thomas v. Irwin,
There is also another objection made by appellants to the judgment in the instant case, which grows out of the contention *291 that the action was prematurely brought because at the time it was commenced Sam and I.H. Caplan, the principals on the replevin bond, were restrained by a court order from paying the amount of the judgment in the replevin suit. This contention is based upon the facts with relation to the attachment in the suit of CaplanFinance Corp. v. Smith, mentioned heretofore. However, we need not discuss the legal situation created by this incident because the matter previously considered is decisive of the appeal.
The judgment is reversed.
Sturtevant, J., and Nourse, J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 27, 1926.