108 Cal. 143 | Cal. | 1895
Action of claim and delivery. The complaint alleges that the plaintiff is the owner and entitled to the possession of four mules of the value of four hundred dollars; two double sets of harness of the value of seventy-five dollars; one farm wagon of the value of sixty dollars, and one pair of lead bars, of the valúe of five dollars; all of said property being of the aggregate value of five hundred and forty dollars; that on October 9, 1893, the defendant, as constable of Santa Ana township, in Orange county, without the plaintiff’s consent and against his will, took said articles of personal property from the possession of the plaintiff; that before the commencement of this action the plaintiff demanded of the defendant the possession of said articles of personal property, but the defendant refused to deliver the same. Upon the trial of the action the court found that the plaintiff was the owner of the property, and that the aggregate value of said property at the time it was taken was four hundred and twenty-five dollars, but did not find the particular value of each article. Judgment was rendered in favor of the plaintiff for the possession of the property, and, in case delivery thereof could not be had, that he have and recover from the defendant the sum of four hundred and twenty-five dollars.
1. The defendant filed a general demurrer to the complaint, and now urge's that the demurrer should have been sustained on account of the absence of an averment that the plaintiff had made a claim for the property in,
2. The failure of the court to find the specific value of the several articles did not tend to render the judgment invalid. In Whetmore v. Rupe, 65 Cal. 237, it was held that this omission did not authorize a reversal of the judgment, the court saying: “ By section 627 of the Code of Civil Procedure the jury are to find the value of any specific portion of the property only ‘ if so instructed.’ Error can, therefore, only arise in a case where such instruction would be pertinent and proper, and the instruction was asked and refused.” The defendant herein did not in his answer set forth the value of the several articles, and took issue with the plaintiff
The judgment and order are affirmed.
Van Fleet, J., and Garoutte, J., concurred.