30 Mont. 25 | Mont. | 1904
prepared the following opinion for the court:
The judgment appealed from is a money judgment for the value of the property. Prior to the service and filing of the notice of appeal, plaintiff had filed a motion to amend the judgr ment. This motion, however, was not passed upon, until subsequent to' the perfection, of the appeal, when an amended judgment was ordered entered. It is claimed by the appellant that the verdict is erroneous in not providing for the return of the property, that it is indefinite, and that it “is not in the alternative.” The respondent contends that both the verdict and the original judgment are correct in form, and that, if the judgment was erroneous, it was the duty of the appellant to apply to the trial court for its correction.
The assignment of error relative to the alleged defects in the verdict is, not referred to, in the brief, except in the somewhat extended objection under the heading “Specifications of Error.” No authorities, are cited, nor have counsel given the court the benefit of their opinion as to why they think the verdict defective, further than the mere assignment of error. We have, however, examined this assignment, and find that the verdict is, not open to the objections made. (Section 1103, Code of Civil Procedure; Wheeler v. Jones, 16 Mont. 87, 40 Pac. 77; Etchepare v. Aguirre, 91 Cal. 288, 27 Pac. 668, 25 Am. St. Rep. 180.)
In Boley v. Griswold (1871), 20 Wall. 486, 22 L. Ed. 375, appealed from tbe Montana territorial court (1872, 1 Mont. 515), the Supreme Court of tbe United States held tbat a judgment for the value of tbe property in a claim and delivery action was sirfficient, without providing for tbe return thereof, when it appeared to tbe court tbat tbe property could not be returned; but this question w-as not presented to, nor passed upon by, the territorial court. 0
The gist of a claim and delivery action is tbe wrongful detention of tbe property. Tbe demand is for tbe return of tbe property, or tbe payment of its value if a return cannot be had. H’amages for tbe wrongful detention are incidental. The return of tbe property is tbe primary thing sought. The very nature of the action would seem to indicate an alternative judgment, and that is undoubtedly tbe meaning of tbe statute. Tbe verdict must support tbe judgment, and both verdict and judgment must conform to tbe law. (Etchepare v. Aguirre, 91 Cal. 288, 27 Pac. 668, 25 Am. St. Rep. 180; Cooke v. Aguirre, 86 Cal. 479, 25 Pac. 5; Dwight v. Enos, 9 N. Y. 470; Fitzhugh v. Wiman, 9 N. Y. 559; Berson v. Nunan, 63 Cal. 550; Stewart v. Taylor, 68 Cal. 5, 8 Pac. 605; Washburn v. Huntington, 78 Cal. 573, 21 Pac. 305.)
“The trial court has no jurisdiction pending ah appeal to allow an amendment to- any pleading.” (Kirby y. Superior Court, 68 Cal. 604, 10 Pac. 119.) “An order of the court below amending a judgment after an appeal is taken is erroneous.” (Bryan v. Berry, 8 Cal. 130; Shay v. Chicago Clock Co., 111 Cal. 549, 44 Pac. 237.) “The trial court has no power to so change the judgment appealed from, as in effect- to prevent the review of alleged errors brought up by bill of exceptions.” (Reynolds v. Reynolds, 67 Cal. 176, 7 Pac. 480.) “The superior court cannot deprive the supreme court of jurisdiction of an appeal from a judgment by amending it while the appeal is pending.” (San Francisco Sav. Union v. Myers, 72 Cal. 161, 13 Pac. 403.) “Pending an appeal from an order denying a motion for a new trial, the lower court has no authority to vacate or set aside the same.” (Stewart v. Taylor, 68 Cal. 5, 8 Pac. 605.) “Pending an appeal the court below so far loses jurisdiction of the cause that it cannot on its own motion set aside the judgment.” (Peycke v. Keefe, 114 Cal. 212, 46 Pac. 78; Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829, 70 Pac. 517; Finlen v. Heinze, 28 Mont. 548, 569, 73 Pac. 123; Bordeaux v. Bordeaux, 29 Mont. 478, (decided February 1, 1904), 75 Pac. 359; Glavin v. Lane, 29 Mont. 228, 74 Pac. 406.)
The corrected judgment entered in this case on January 3, 1903, cannot, therefore, have any effect upon this appeal, nor be considered any further than as a mere fact appearing in the amended record.
We therefore recommiend that this cause be remanded to the district court, with direction to modify the judgment so as to make the same conform to the provisions of Section 1193 of the Code of Civil Procedure, and that the judgment, when so modified, be affirmed.
For the reasons, stated in the foregoing opinion, this cause is, remanded, to the district court, with directions •to modify the judgment so as to make the same conform to the requirements of Section 1193 of the Code of Civil Procedure, and that when so modified it be affirmed.