24 Cal. 147 | Cal. | 1864
This is an appeal from a judgment in a suit against the
The point of the demurrer is, that it does not appear that in the suit to recover the possession of the property the value of the property was found by the jury, or that an alternative judgment was rendered, as provided in section 200 of the Practice Act. The question must be determined by a construction of sections 177, 200, and 210, subdivision 4 of said Act, and the terms of the undertaking.
If we were called upon to construe the sections, as an original question, unaffected by any prior decision upon the same point, we might be disposed to hold the complaint sufficient in this respect. Such was our impression upon the argument, but upon a careful examination of the decisions of the Supreme Court referred to in the argument, we find that the point has been determined the other way. In Nickerson v. Chatterton, 7 Cal. 568, the precise question arose in an action upon an undertaking given by the defendant, under section 104 of the Practice Act, containing a similar condition. In that case a judgment had been entered in the replevin suit in favor of plaintiff, for restitution of the horse in controversy, and for damages and costs; and the breach alleged was the non-delivery of the horse and non-payment of the damages for his detention. As in the present case, the jury did not find the value of the property, and consequently that fact was not alleged. The defendants demurred. The demurrer was overruled, and judgment entered, from which defendants appealed. The precise point made by defendant in the case now before the Court was made and relied on in that case, viz: That, in order to hold the sureties on their undertaking, the value of the property must be found by the jury, and the alternative judgment provided for by section 200 entered in the case.
The Court fully considered the question and decided it, sus
The ojoinion was written by Mr. Justice Burnett, and concurred in by Mr. Chief Justice Murray. We cannot find that the decision on this point has been questioned in any subsequent case, although several have arisen where the Judges would have been likely to have suggested doubts had any existed in their minds.
In Ginaca v. Atwood, 8 Cal. 446, it was sought to apply to that case the doctrine laid down hi Nickerson v. Chatterton. This was also an action on a similar undertaking. The plaintiff in the suit to recover the property had been non-suited, and a judgment for the return of the property had been entered in favor of the defendant. As the plaintiff was non-suited, there had been no opportunity for a jury to find the value. The breach was a non-delivery of a portion of the property.' A demurrer was interposed to the complaint, the point of which was that the value of the property had not been ascertained by the jury. Mr. Justice Field delivered the opinion of the Court, Mr. Justice Terry and Mr. Justice Burnett concurring. No doubt is intimated as to the correctness of the rule laid down in Nickerson v. Chatterton. On the contrary, the Court takes an obvious distinction between the two cases, and by strong implication approves the doctrine of the former case, as will be seen from the following passage. Mr. Justice Field says:
*151 “ Section 177 of the Practice Act applies only where the issues of the case have been submitted to and passed upon by the jury. It does not apply to a case of judgment of nonsuit. The decision of the Court in Nickerson v. Chatterton and others, (April term, 1857,) also, only applies to cases which have been submitted to a jury. The present case is like a judgment upon a discontinuance, in which no jury is called. The facts which upon a trial by a jury would have been found in the original replevin suit are by such a judgment left to the determination of the jury called in the suit on the undertaking, so far as the conditions of the undertaking will authorize an inquiry into them.’’
The only point made and relied on was the same relied on in the present case. The Court certainly had a legitimate opportunity to suggest a doubt as to the correctness of the ruling in Nickerson v. Chatterton, if they had any, or if they did not intend to adhere to it. But not only was no doubt suggested, but the Court seeks other grounds upon which to base their decision, and expressly put it upon the ground that section 177 of the Practice Act, and “ the decision of this Court in the case of Nickerson v. Chatterton and others, (April term, 1857,) construing that section only to apply to cases which have been submitted to a jury; ” thereby strongly implying that the section and decision in that case would govern where the case has been tried by a jury. Here was a Court comprised, in part, of other Judges, tacitly, at least, recognizing the validity of the rule laid down in Nickerson v. Chatterton.
The plaintiff in Nickerson v. Chatterton having failed in that suit to recover against the sureties, subsequently brought his action against the principal—the California Stage Company—to recover the value of the property. The same defense was substantially set up in the form of a former recovery in the replevin suit, and this case found its way to the Supreme Court. (Nickerson v. California Stage Company, 10 Cal. 521.) Still another Judge (Mr. Justice Baldwin) had come upon the Bench. In deciding the case, the Justice who
Here the rule in Nickerson v. Chatterton was invoked and relied on, and the Court directly, in express terms, approve of the rule as applied to a case where it is sought to hold the sureties—but say it does not apply to the principal. As applied to that case it may be dicta, but it shows that the Justice had no doubt as to the propriety of the construction given to the provisions of the Practice Act under consideration.
Again, in Mills v. Gleason, 21 Cal. 280, the same section of the Practice Act came under consideration—Justices Cope and Norton having in the meantime come upon the Bench. Mr. Justice Cope, in delivering the unanimous opinion of the Court, says: “A dismissal stands upon the same footing as a nonsuit, leaving the parties to settle in an action upon the undertaking those matters ivhich, if the original suit were prosecuted, it would be necessary to determine in the first instance.'"
Nickerson v. Chatterton was cited by counsel in the argument ; and the Court, in the passage just quoted, and what follows, assume that if the action in the original suit had not been dismissed, but had been prosecuted, it would have been “ necessary to determine, in the first instance,” the matters provided for in the sections of the Practice Act under consideration.
The decision in Nickerson v. Chatterton was rendered seven years ago. In these repeated instances the construction of the statutes announced in that decision has been brought to the notice of the Court, and recognized both expressly and by implication, and no doubt as to its correctness, so far as we can find, has been, in any instance, suggested or intimated.
The question arises upon the construction of a statute pre
Although the reasoning of the Court in Nickerson v. Chatterton is not entirely satisfactory to our minds,«.yet, the point was debateable, and we do not feel at liberty, at this late day, to disturb a decision concurred in by so many of our predecessors.
It is insisted that, admitting the plaintiff is not entitled to recover the value of the property, he is still entitled to recover the thirty-nine dollars and thirty cents recovered in the replevin suit, and that the demurrer was improperly sustained on that ground.
The case of Nickerson v. Chatterton seems to cover this point also. But, however that may be, under the view we have taken of the case, the only cause of action shown by the complaint, admitting that to be good, is for the costs. The amount of the costs is less than two hundred dollars, and no cause of action is shown of which the District Court could take jurisdiction.
The judgment is affirmed.