Action of claim and delivery. The plaintiff brought this action to recover from the defendant the possession of certain personal property or its value. Upon the commencement of the action, under his direction, the property, was taken by the sheriff from the possession of the defendant, and within five days thereafter and before its delivery to the plaintiff, the sheriff, upon the execution to him by the defendant of a proper undertaking therefor, returned the property to her. In her answer to the complaint defendant denied its allegations and alleged ownership in herself of the property and the right to its possession. The cause was tried by the court without a jury and judgment rendered in favor of the defendant, from which, and an order denying a new trial, the plaintiff has appealed.
1. The objection on the part of the respondent to any consideration of the statement of the case must be overruled. The failure of the plaintiff to present the statement to the judge for settlement within ten days after the receipt from
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the defendant of her proposed amendments did not deprive the judge of the power to settle the statement as so amended.
(Pendergrass v. Cross,
2. The finding of the court that the defendant was the owner and entitled to the possession of the property was made upon the consideration of conflicting evidence, and cannot be reviewed. It was not necessary for the court to find the value of each article of property. The plaintiff had alleged in his complaint only the aggregate value of all the articles, and, as all of the property was returned to the defendant, the finding of the court of its aggregate value was all that was required. The claim of the appellant that he had the right to retain such articles as he might choose, and pay to the defendant the value thereof, notwithstanding the court found that she was the owner, cannot be sustained upon any principle of law.
The claim of the appellant that the judgment awards to the defendant certain articles of property for which the plaintiff did not sue is not sustained by the record. The court, after enumerating the articles of which it finds the defendant to be the owner, also finds that “the said property is the property claimed and demanded by the plaintiff,” which was taken from her by the sheriff at the instance of the plaintiff.
3. The court found that the defendant had employed attorneys to appear for and represent her in the action, and had become liable to them for their services so rendered in the sum of three hundred dollars. It also found that she had been *193 damaged in the sum of three hundred dollars, by reason of the wrongful taking of the property from her, and in addition to giving judgment for the possession of the property, awarded a judgment in her favor against the plaintiff, for damages in the sum of three hundred dollars.
There was no evidence of any damage sustained by the defendant from the wrongful taking of the property, other than her liability for compensation to the attorneys employed by her in the action. Section 667 of the Code of Civil Procedure provides: “If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.” As the property was not delivered to the plaintiff, the provisions of this section have no application. Section 3336 of the Civil Code is also inapplicable, since there was no conversion of the property by the plaintiff, and the defendant did not show that she had expended any time or money in pursuit of the property.
(Murphy v. Mulgrew,
It is contrary to the general policy of the law that a plaintiff who is unsuccessful in his suit shall be mulcted in damages merely by reason of his failure to obtain a judgment. It is only in exceptional eases that the successful party in an action, either at law or in equity, is permitted to recover as a part of his damages the attorneys’ fees paid by him. In
Asevado v. Orr,
The superior court is directed to modify its judgment by-striking therefrom “the sum of three hundred dollars ($300) damages” awarded to the defendant, and as SO' modified the judgment and order will stand affirmed.
Garoutte, J., and Van Dyke, J., concurred.