64 P. 409 | Cal. | 1901
The plaintiffs had judgment in the court below for the recovery of the possession of the personal property described in the complaint, or for the sum of $350, the value thereof, and $100 as damages and costs. The defendants appeal from the judgment and from an order denying a new trial. The grounds urged for reversal are, insufficiency of the complaint; misjoinder of causes of action; insufficiency of evidence to justify the findings; and the allowance of attorney's fees as damages.
1. The complaint, it is contended, fails to allege ownership or right of possession at the time of the commencement of the action, and hence, under the decisions in this state, is insufficient. (Affierbach v. McGovern,
2. The objection by the demurrer, that several causes of action are improperly united in the complaint, has become immaterial by reason of the judgment being limited to the recovery of the possession of the property or its value. No judgment was given upon the plaintiff's claim for damages for ruining his business.
3. The plaintiff deraigned title to the goods in controversy under a sale of date October 11, 1898, from one Bowdish, who was then admittedly the owner of the property, and against whom an attachment had been issued. The sale was made between twelve and one o'clock, and was in consideration of an indebtedness to the plaintiff of $450, which was more than the value of the property. It is found that possession was immediately delivered to Harris, who remained "in the sole and exclusive possession thereof continuously thereafter," and that the sale was made in good faith, and not with the intent to hinder, delay, or defraud creditors. The attachment was levied and the property taken from his possession after the hour of five P.M. of the same day. The specifications of insufficiency of the evidence are, in effect, that the leasehold of the premises was not assigned, that Bowdish retained the key, or a key, of the store, and that the goods were not removed. But there is nothing in the facts specified inconsistent with the findings.
4. The court rendered judgment in favor of the plaintiff, for the possession of the property described in the complaint or the value thereof in case delivery cannot be had, "together with one hundred dollars as damages." This portion of the *319 judgment rests upon the finding of fact that the plaintiff had expended the sum of three hundred dollars as attorney's fees in pursuit of said personal property, but that any part of said amount over one hundred dollars could not be recovered.
The action is not for the conversion of personal property, and the provisions of section
The superior court is directed to modify the judgment appealed from by striking out that portion thereof which adjudges that the plaintiff recover "one hundred dollars as damages," and as thus modified the judgment shall stand affirmed. *320