Brueckner v. Ferrara

FOX, P. J.

Defendant appeals from the judgment and from the orders striking his cost bill and denying him relief from his failure to file it in time.

Plaintiffs, a copartnership, doing business as Belvedere Plumbing, filed this action on May 7, 1958, to recover possession of certain office furniture and fixtures, garage tools, and equipment of the automotive business of Robustelli, Inc., or the value thereof if delivery could not be had. Following the filing of the complaint, plaintiffs invoked the auxiliary remedy of claim and delivery and thereby secured the immediate possession of the said personal property. Robustelli, Inc., had made an assignment to defendant, an attorney, for the benefit of creditors. In his answer, defendant denied the material allegations of the complaint, sought affirmative relief'by way of counterclaim, and prayed that plaintiffs be ordered to return all of said property to him and, in case return could not be had, for a judgment for the value thereof, plus interest, and damages for the wrongful taking and withholding of said property. The evidence disclosed that plaintiffs placed said property in their warehouse and still had it in their possession at the time of trial.

Among other things, the court found:

1. That on or about May 7, 1958, plaintiffs took from the possession of the defendant certain personal property (described in the findings), and that “plaintiffs at all times since up to but not after April 30, 1959, have withheld possession of same from defendant. ’ ’

2. That “at the time of the commencement of this action and at all times thereafter, defendant was and now is entitled to the possession of all of said items of personal property.”

3. “That the fair market value of said personal property , , , was . , . and now is $6,000.00,”

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4. “That the taking of possession of said personal property by plaintiffs and their withholding the same from defendant’s possession damaged defendant in the sum of $750.00.”

From these findings the court concluded that defendant should recover from plaintiffs the possession of said personal property, together with $750 damages for the detention thereof; or, in ease delivery of said property cannot be had, then defendant was entitled to recover from plaintiffs $6,000, the value of said property, together with his said damages and costs. Judgment was thereupon entered in this alternative form. The judgment was in accordance with that portion of section 667, Code of Civil Procedure, which provides that “ [i]n an action to recover the possession of personal property ... If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return can not be had, and damages for taking and withholding the same.”