Vasey v. Campbell

HALL, J.

This is an appeal by defendant Campbell from a judgment in favor of plaintiff and against Campbell for the recovery of certain personal property, and one dollar damages for the detention thereof, and comes to this court upon the judgment-roll.

The complaint is in the usual form of an action for claim and delivery of personal property. The contention of appellant is that although the court, in express terms, found “That the plaintiff is now, and for more than one year last past has been, the owner of and entitled to the possession of” the property sued for, the judgment is not supported by the findings, because from other findings it appears that the property sued for is ordinarily used in playing a banking game prohibited by the statutes of this state.

[453]

The finding that the plaintiff is the owner of and entitled to the possession of the property is a finding of an ultimate fact, and with the other findings as to the possession of the property by defendant, the demand for the delivery thereof, the refusal to deliver, the value and damage, are sufficient to support the judgment.

It is insisted, however, by appellant that the findings as a whole do not support the judgment, and that the same should be reversed, because, as it is claimed, other findings show that the property sued for is used for the purpose of playing a banking game prohibited by the statutes of this state, and was taken possession of under the direction of defendant as district attorney.

An examination of the findings discloses that it is nowhere found that plaintiff ever used any of the property recovered for gambling purposes, or that any of it was ever so used with his knowledge, or that he intends to so use it in the future, or that it can only be used for such purposes. Thus, while it is found that a bird’s-eye ball-bearing wheel “is commonly known as and used as a roulette wheel, and that roulette is a gambling game and a banking game; that plaintiff has used said roulette wheel for other purposes not unlawful,” it is not found that plaintiff used it for unlawful purposes.

As to a cardholder, it is found that it “is an ordinary cardholder, capable of being used in numerous legal ways, but is commonly known as and used as a faro bank cardholder.”