Cooke v. Aguirre, No. 13867

No. 13867 | Cal. | Nov 27, 1890

Works, J.

This is an appeal on the judgment roll from a judgment for the recovery of personal property. The plaintiff alleged that he was the owner and entitled to the immediate possession of the property, giving its value, and that the defendant had wrongfully, and without the plaintiff’s consent, taken and retained possession thereof, and detained the same from him; that he had demanded possession of the property, which was refused; and that he had been damaged in the sum of one hundred dollars. The defendant answered, denying the ownership of the plaintiff, or his right to possession, or that he had wrongfully taken or wrongfully detained the property, or that the plaintiff had been damaged; and alleging, also, that the property was owned by one Cyrus F. Cooke. He also justified, as sheriff, by alleging that said Cooke was the owner of the property, and that he had taken possession of the same by virtue of a writ of attachment, regularly issued against Cooke, and placed in his hands for service as such sheriff.

The answer did not put in issue the value of the property, as alleged in the complaint. The court found that the plaintiff was the owner and in possession of the property, and that the defendant, in his official capacity as sheriff, by virtue of a writ of attachment issued against said Cyrus F. Cooke, wrongfully took possession of the property, and still held the same. There was no finding that the plaintiff was entitled to the possession of the property, or its value, or the amount of plaintiff’s damages. The property was sufficiently described in the complaint. The court rendered the following judgment: “ Wherefore, by reason of the law and the findings aforesaid, it is ordered, adjudged, and decreed that James A. Cooke, the plaintiff, do have and receive of A. G. Aguirre (sheriff), the defendant, judgment for the return of the property, to wit, two stallion horses, together'with said sheriff’s costs and disbursements incurred in this action, amounting to the sum of sixty-two and five hundredths dollars ($62.05).”

The appellant contends that the findings do not support the judgment; that the court did not find on all the material issues; and that the judgment is invalid, because it does not sufficient! describe the property, and is not in the alternative, as required by law.

The questions whether the plaintiff was entitled to the possession of the property, and whether he was damaged by the taking, were put in issue by the pleadings. Both of these were material issues. One of them, at least, must have been found in favor of the plaintiff, to entitle him to recover. There was no finding as to his right to the possession. For this reason, the judgment is not supported by the findings. The question of damages should have been found upon, but the appellant cannot reasonably ask for a reversal of the case because a judgment for damages was not rendered against him. The judgment was erroneous, because not in the alternative, as required by section 667 of the Code of Civil Procedure (Berson v. Nunan, 63 Cal. 550" court="Cal." date_filed="1883-06-23" href="https://app.midpage.ai/document/berson-v-nunan-5441358?utm_source=webapp" opinion_id="5441358">63 Cal. 550; Stewart v. Taylor, 68 Cal. 5" court="Cal." date_filed="1885-11-19" href="https://app.midpage.ai/document/stewart-v-taylor-5442284?utm_source=webapp" opinion_id="5442284">68 Cal. 5); and for the further reason that it contained no sufficient description of the property. It contains no sufficient description of the property, nor does it refer to any other pleading or paper for such description.- Such a judgment is bad for uncertainty. ( Welch v. Smith, 45 Cal. 230" court="Cal." date_filed="1873-07-01" href="https://app.midpage.ai/document/welch-v-smith-5437918?utm_source=webapp" opinion_id="5437918">45 Cal. 230; Kelley v. McKibben, 53 Cal. 13" court="Cal." date_filed="1878-07-01" href="https://app.midpage.ai/document/kelley-v-mckibben-5439277?utm_source=webapp" opinion_id="5439277">53 Cal. 13.)

Judgment reversed.

Paterson, J., and Fox, J., concurred.