Nahhas v. Browning

LENNON, J.

The plaintiffs herein sue on a replevin bond, Browning, the plaintiff in the replevin action, and Balsdon and Morris, Ms sureties, being joined as defendants. The property replevied consisted of a harvesting outfit. It was destroyed by fire while in the possession of Browning, who thereafter dismissed the replevin suit. The plaintiffs thereupon instituted this action and recovered judgment on a verdict awarding damages in the sum of $3,695. The verdict of the jury was accompanied by answers to certain questions submitted by the court, which indicated r|that the sum of $3,695 had been arrived at by adding the item of $920, representing the plaintiffs’ damage for the loss of the use of the property, to the item of $2,775, representing the value of the property at the time it was replevied.

On the defendants’ motion, the court, by an order purporting to be made pursuant to the provisions of section 663 of the Code of Civil Procedure, vacated the judgment on the ground that it was inconsistent with and not supported by the so-called special verdict, and entered judgment for the plaintiffs in the sum of $2,775, with interest from the date of the replevin at seven per cent yearly. The plaintiffs thereupon prosecuted this appeal upon a bill of exceptions containing the pleadings, the verdict, the original judgment and the order appealed from, but which does not set forth or purport to set forth any of the evidence received in the case.

[1]

In making the order complained of, the lower court apparently proceeded upon the theory that the plaintiffs’ cause of action was to be viewed solely as one for wrongful

[57]

conversion, and, pursuant to this theory, it applied the rule of damages prescribed by section 3336 of the Civil Code, and, therefore, eliminated the item of $920 representing the plaintiffs’ damage for the loss of the use of the property. In this the court was in error. By dismissing his action in replevin, Browning could not, and did not, deprive the plaintiffs of their right to recover such damages as they could have recovered in that action had it been prosecuted to judgment.

(Mills

v.