Clary v. Rolland

By the Court, Sawyer, J. This is an appeal from a judgment in a suit against the [149]sureties on an undertaking given in a replevin suit. The Court sustained a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the plaintiff declining to amend, final judgment in the case was entered.

The point of the demurrer is, that it does not appear that in the suit to recover the possession of the property the value of the property was found by the jury, or that an alternative judgment was rendered, as provided in section 200 of the Practice Act. The question must be determined by a construction of sections 177, 200, and 210, subdivision 4 of said Act, and the terms of the undertaking.

If we were called upon to construe the sections, as an original question, unaffected by any prior decision upon the same point, we might be disposed to hold the complaint sufficient in this respect. Such was our impression upon the argument, but upon a careful examination of the decisions of the Supreme Court referred to in the argument, we find that the point has been determined the other way. In Nickerson v. Chatterton, 7 Cal. 568, the precise question arose in an action upon an undertaking given by the defendant, under section 104 of the Practice Act, containing a similar condition. In that case a judgment had been entered in the replevin suit in favor of plaintiff, for restitution of the horse in controversy, and for damages and costs; and the breach alleged was the non-delivery of the horse and non-payment of the damages for his detention. As in the present case, the jury did not find the value of the property, and consequently that fact was not alleged. The defendants demurred. The demurrer was overruled, and judgment entered, from which defendants appealed. The precise point made by defendant in the case now before the Court was made and relied on in that case, viz: That, in order to hold the sureties on their undertaking, the value of the property must be found by the jury, and the alternative judgment provided for by section 200 entered in the case.

The Court fully considered the question and decided it, sus[150]tabling the point made. One other point made by the appellant was decided by the Court in his favor, and the reversal of the judgment of the Court below was placed on both grounds. It is insisted by respondent that because there was another point decided upon which the judgment of reversal was correct, that the decision on this point is merely dictum. But we might just as well treat the decision on the other point as dickm. The appellant directly made and relied upon both points, the Court considered and decided both, and devoted much the larger share of the opinion to the discussion of the point now before the Court. The opinion closes with these words : “ For these reasons we think the judgment of the Court below ought to be reversed.”