Stewart v. Taylor

McKee, J. — Appeal from a judgment and order denying a motion for a new trial, in an action against the defendant as sheriff of Mono County, for the recovery of personal property or five hundred dollars, its alleged value, and six hundred dollars damages.

By his answer to the complaint, the defendant specifically denied the allegations of the complaint, and pleaded justification under a writ of attachment which was issued in an action against a former owner of the property, from whom plaintiff claimed to have derived his title.

[6]The jury, before whom the case was tried, after being properly instructed as to the form of their verdict, rendered a verdict as follows: “We . . . . find a verdict for plaintiff in the sum of five hundred dollars ”; and the same was entered, without objection, in the minutes of the court. Upon the verdict thus rendered, the court rendered judgment for the plaintiff “ for the return and redelivery of the property mentioned in the complaint,- or the sum of five hundred dollars, the value thereof, in case a redelivery of the property cannot be had, and for costs and disbursements.”

The case does not show whether the property had been delivered to the plaintiff or not; and the defendant, by his answer, did not claim a return of the property. It is only where a verdict is found for defendant in an action to recover possession of personal property, that judgment must be entered for a return of the property if the defendant claims to be entitled to its return. But as the action is brought to recover possession, and the plaintiff obtains a verdict, judgment should be for the possession or the value of the property, and damages, if any awarded, for its detention. Such is the rule for the entry of judgment in this class of actions, prescribed by section 667 of the Code of Civil Procedure; and a judgment which is not in the alternative form as prescribed by the code is erroneous. (Berson v. Nunan, 63 Cal. 550.) The judgment in hand is therefore erroneous.

The judgment is also erroneous, because it is founded upon an informal and incomplete verdict.

The verdict was informal and insufficient in that it did not find the value of the property. (Garlick v. Bower, 62 Cal. 65; Vanderford v. Foster, 62 Cal. 179.) It is not helped by the fact that the phonographic reporter noted in his report of the proceedings in the cage, “ that the jury retired and subsequently returned into court with a verdict in favor of plaintiff, fixing the value of the property at five hundred dollars.” The verdict could not be cor