| Cal. | Jul 1, 1859
Terry, C. J. concurring.
This action was brought to recover certain personal property. Ob the trial in the Superior Court, the plaintiff failed to appear, and liis complaint was dismissed, and the Court proceeded to render judgment for the defendant for the value of the pi’operty, upon a special finding that the same could not be returned. Afterwards, a motion was made in the Superior Court to set aside the judgment, upon the ground of some alleged irregularity in the manner of ascertaining the facts. But when this motion came up for hearing, the jdaintiff again failed to appear) and the Court dismissed the motion.
There seems to be no allegation or praj'or in the answer in respect to the change of possession of the property from the defendant to the plaintiff; and, therefore, the judgment for the value was erroneous. This judgment of return is in the nature of a cross judgment, and there must be some appropriate averments in the pleadings to put in issue the facts upon which the relief is given. The judgment was erroneous in this respect.
So much of the judgment of the Court below as dismisses the plaintiff’s complaint is affirmed, hut the judgment in favor of the defendant against the plaintiff for the value of the property is reversed. As the plaintiff below failed to prosecute his suit or motion, and has thereby been guilty of laches, we think the costs of this appeal should be paid by him.
Ordered accordingly.