Orchardson v. Christie

CONREY, P. J.

This appeal is from the judgment and is presented on the judgment-roll. The action was brought to recover possession of 110 oil paintings and other pictures, of which the plaintiff was the owner and entitled to their possession, and which were wrongfully detained from him by the defendant.

Appellant’s first point is that some of the pictures were not named in the complaint. The judgment purports to be for 105 of these pictures, and they are named in the judgment. Those which are not named in the complaint are definitely referred to as being pictures made by the plaintiff and at that time held in possession by the defendant and it is alleged that the subjects thereof are not named or described, because the subjects have escaped the memory of the plaintiff and that the defendant has denied him access to the property. This objection grounded on defects in description should have been raised by demurrer for uncertainty. The complaint stated a cause of action and the defendant met the issues by answering, without demurrer.

(Kelly

v.

Murphy,

70 Cal. 560, [12 Pac. 467];

Hawley

v.

Kocher,

123 Cal. 77, [55 Pac. 696].)

Appellant next contends that the judgment should be reversed because it does not provide an alternative recovery for the value of the property in case a delivery cannot be had. (Code Civ. Proc., see. 667.) The judgment, after ordering recovery by the plaintiff of the property therein described, states “that plaintiff is entitled to judgment for the sum of $12,500, in the event that said pictures are not returned to the plaintiff herein by said defendant, ’ ’ but does not use the ordinary form of “do have and recover,” etc. If this amounts to a money judgment, it complies with the statute. If it does not amount to a money judgment, it is difficult to see how the defendant is injured thereby, or how he can claim that there has been any miscarriage of justice which would entitle him to a reversal. The phrase, “in the event that said pictures are not returned to the plaintiff herein by said defendant,” is substantially the same as the statutory words, “in case a delivery cannot be had,” when viewed in the light of the purpose of that provision in the statute. That purpose is indicated in