Skaggs v. Taylor

KNIGHT, J.

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

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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 non-suit 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