247 P. 218 | Cal. Ct. App. | 1926
Plaintiff brought this action in claim and delivery to recover possession of an automobile which, following the commencement of this action, was seized by the sheriff subject to the usual replevin proceedings, and upon the failure of defendant to except to the sufficiency of plaintiff's sureties or to give an undertaking for its return, was delivered before the trial into the possession of the plaintiff. At the trial judgment of nonsuit was entered and although defendant's answer contained a claim for the return of said automobile or its value in case a return could not be had, no order or judgment to that effect was granted or rendered. Subsequently defendant moved the court to modify its judgment so as to incorporate such provision therein, but the motion was denied. The defendant has taken three appeals, the first being from the minute order granting the nonsuit, the second from the judgment *521 of nonsuit, and the third from the order denying his motion to modify said judgment.
The judgment of nonsuit conformed in terms to the order made in that respect, and was as follows: ". . . Witnesses on the part of the plaintiff were duly sworn and examined, whereupon plaintiff closed his case, and thereupon defendants moved the court for a judgment of nonsuit on the ground that plaintiff had failed to prove a sufficient cause of action against said defendants and the court having heard the arguments of counsel for the respective parties and being fully advised in the premises, granted said motion for nonsuit and ordered a judgment of nonsuit entered against said plaintiff and in favor of said defendants and the defendants have their costs herein. Wherefore by virtue of the law, and by reason of the premises aforesaid it is ordered, adjudged, and decreed, that the plaintiff take nothing by this said action, and that judgment of nonsuit be, and the same is hereby given, made, and granted in favor of said defendants, against said plaintiff and that defendants shall have and recover of and from the plaintiff his costs. . . ." Said judgment was entered on December 23, 1924, and subsequently, on January 2, 1925, defendant served and filed a notice of motion to modify the same in the manner hereinabove mentioned upon the ground that said judgment did not conform to the provisions of section 667 of the Code of Civil Procedure. At the hearing of the motion defendant offered in evidence, in support thereof, "all of the papers, records and files in the above-entitled action, and particularly the second amended complaint of plaintiff and the answer of defendant thereto . . ." Said answer, besides denying plaintiff's claim of ownership and right to the possession of said automobile, set forth facts showing the circumstances under which said automobile came into defendant's possession and was being detained by him. Those circumstances, briefly stated, were that as constable he levied upon said property under a writ of attachment issued in an action brought by a corporation named Field and Lee against James E. Skaggs, the husband of this plaintiff, and later sold the same under execution proceedings to said Field and Lee; that on or about September 11, 1923, pursuant to a demand made upon him by this plaintiff, he *522 surrendered the automobile to her and afterward she voluntarily returned the same to him; that thereafter said automobile remained in his possession until seized by the sheriff under process issued in this action, without further demand of any kind being made upon him. Said answer also contained certain denials and allegations as to value and damages, but the same are unimportant here. The prayer of the answer was that plaintiff take nothing by her action and that defendant be given judgment for a return to him of the property or the value thereof in case a return could not be had, together with damages for its depreciation while in plaintiff's possession. As additional evidence, defendant offered in support of the motion an affidavit made by one of his attorneys which set forth, among other things, that at the time of the commencement of the action said automobile was at the request of this plaintiff seized by the sheriff, had since been in the possession of the sheriff or the plaintiff, and had not been returned to the defendant; that at the time of the seizure said automobile was in defendant's possession, and that he was entitled to the return thereof; that it was stipulated during the trial that the value of said automobile at the time it was seized was four hundred dollars. In the return to the writ of replevin which was filed in the action prior to the service of the notice of motion, the sheriff stated that after the seizure defendant failed to except to plaintiff's sureties and "omitted to require a return of said property and no other person other than the defendants having made return thereto, I did, at the expiration of the time required by the statute for seeking such delivery and making such claim, to wit, on the 4th day of December, 1923, deliver the property so taken to the plaintiff herein as by said order I am commanded." The evidence thus offered by defendant was not contradicted by plaintiff, no showing whatever being made in opposition thereto.
[1] Section
[5] It cannot be successfully maintained that a judgment of nonsuit is not a "judgment for the defendant" within the meaning of said section 667 for the reason that it has been expressly held in the case of Kowalsky v. Nicholson,
For the foregoing reasons the judgment and the order denying defendant's motion to modify the judgment must be reversed, with directions to grant said motion and to modify said judgment so as to give the defendant the benefit of the relief provided for in section 667 of the Code of Civil Procedure. (Etchepare v.Aguirre,
Tyler, P.J., and Cashin, J., concurred.