124 P. 1035 | Cal. Ct. App. | 1912
In this action plaintiff brought suit in the superior court in claim and delivery to recover a piano. The piano is alleged in the complaint to be of the value of $500. Plaintiff also alleges damages in the sum of $100 expended in an effort to recover the piano, and prays for judgment for the possession of the piano or the sum of $500, the value thereof, in case a delivery thereof cannot be had, and for $100 as damages on account of costs incurred in the effort to recover the piano.
The court found the value of the piano to be $200, and gave judgment that plaintiff recover from defendant the piano, and in case recovery thereof cannot be had, that plaintiff recover from defendant the sum of $200, the value thereof.
Defendant subsequently moved the court, under sections
The motion was denied, and the appeal is by defendant from this order.
The attack upon the jurisdiction of the court over the action is predicated solely upon the fact that the court found the value of the piano sued for to be $200. Counsel for appellant have devoted their energies to discussing the question as to whether or not the jurisdiction of the superior court in an action in claim and delivery depends upon the allegations of the complaint or the finding made by the court as to the value of the property in suit.
While the answer to this question is not difficult, the correctness of the ruling of the court does not, in our opinion, depend upon such answer.
The finding as to the value of the piano is entirely without the issues made by the pleadings. The complaint alleges in apt language the value of the piano to be $500, and there is no issue raised by the answer upon the allegations as to value. Defendant denied the ownership and right of possession of plaintiff, and the allegations concerning the expenditure of $100 in the effort to recover the piano, and set up a claim to the ownership and right of possession in the piano under a certain contract with plaintiff. But there is not one word in the answer in the record before us raising or attempting to raise any issue as to the value of the piano not being as alleged in the complaint. The pleadings were verified. The allegation of value not being denied, it was admitted to be as alleged, and the finding contrary to such admission should be disregarded. The fact upon which appellant claims the jurisdiction of the superior court depends was admitted by the answer to be such as to unquestionably support the original jurisdiction of the superior court to try and determine the action upon its merits.
Turning now to the question discussed by appellant in his brief, we have no doubt that the court had jurisdiction of the cause, even if it be conceded that the finding of the court as to the value of the piano is controlling as against the admission in the pleadings.
The only case that lends any support to the contention of appellant is the case of Ballerino v. Bigelow,
An action in claim and delivery has two aspects: In one it is a suit to recover specific personal property. In the other it is a suit to recover a money demand, and as such the amount demanded exclusive of interest is the test of jurisdiction. In this aspect the suit is within the rule laid down in such cases as Dashiell v. Slingerland,
The case of Shealor v. Superior Court,
The case of Pratt v. Welcome,
See, also, Greenbaum v. Martinez,
In conclusion, it may be said that the argument of appellant is self-destructive, for, if the superior court did not have jurisdiction to try and determine this case upon its merits, because the value of the property involved as found by the court was less than $300, this court has no appellate jurisdiction of the case. The original jurisdiction of the superior court and the appellate jurisdiction of this court, so far as they relate to the subject matter of this action, are given in precisely the same words by the constitution. (Const., art. VI, sec. 5, and art. VI, sec. 4.)
The order appealed from is affirmed.
Kerrigan, J., and Lennon, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 16, 1912.