Black v. Black

Paterson, J. Defendant appeals from the judgment and the order denying motion for a new trial, and from an order denying motion to satisfy the judgment.

Plaintiff, who is the wife of defendant, but living separate and apart from him, commenced this action May 12,1886, to recover the possession of four hundred hogs, alleged to be her separate property, or, if delivery of possession could not be had, for two thousand dollars, the value thereof.

The court found the facts alleged in the complaint to be true; i. e., that plaintiff was the owner of the four hundred head of hogs; that they were on the Jeff Thomas [521]ranch, occupied by defendant; that the brands or marks were as alleged; that defendant had no right, title, or interest in the property; that it was the separate property of plaintiff; that defendant unlawfully withholds possession of the same; that plaintiff made demand, and defendant refused to deliver possession; and finally, that “ the hogs are of the value of four dollars each, the whole number being of the value of sixteen hundred dollars.” The judgment which followed the conclusions of law found by the court adjudged that “ plaintiff have and recover of defendant the possession of four hundred hogs now on the Thomas ranch in possession of defendant [describing the brands], or in case delivery cannot be had, that plaintiff have and recover of defendant the value of said hogs, to wit, the sum of four dollars per head, or sixteen hundred dollars for the whole number, and that plaintiff have costs of the "action.” The sheriff, under execution, took ninety-six hogs from defendant and delivered them to plaintiff, who accepted them. The sheriff then levied the writ on personal property of appellant, and after a sale thereunder, the writ was returned partially satisfied. He reported that he had delivered to plaintiff “ ninety-six hogs, valued at four dollars per head, $384; amount realized on execution sale, $426.64; total, $810.64.” Upon a showing of these facts in affidavits, defendant asked the court for an order that the judgment for sixteen hundred dollars be wholly satisfied except as to the costs. The motion was denied.

It is urged by appellant that inasmuch as the allegation of the complaint and the prayer thereof were for four hundred hogs or two thousand dollars, the sheriff was bound to deliver all the hogs or none at all; that if the sheriff could not return to plaintiff all of the hogs,— four hundred head,—it was his duty to so state in his return to the writ, and proceed to levy and sell as therein directed; and that the delivery and acceptance of ninety-six hogs was a satisfaction of the judgment.