Etchepare v. Aguirre

Vanclief, C. Action to recover the possession of personal property or the value thereof, commonly called. “ claim and delivery of personal property.”

The defendant, as sheriff of Los Angeles County, seized the property in question by virtue of a writ of attachment as the property of the defendant in the attachment suit, from whom the plaintiff claims to have purchased it before the levy of the attachment. It is alleged in the answer of the defendant that the sale of the property to plaintiff was fraudulent and void as to the creditors of the defendant in attachment, and this was the principal issue tried. The property was delivered to the plaintiff pursuant to section 514 of the Code of Civil Procedure, as a return thereof to the defendant was not required.

The trial was by jury, whose verdict was as follows: “ We, the jury in the above-entitled action, find for the defendant, and fix the value of the property at fifteen hundred dollars.”

Whereupon it was adjudged by the court “ that said defendant have and recover from said M. Etchepare, the plaintiff herein, the sum of fifteen hundred dollars, or the return of the property described in the complaint herein, and his costs.”

The plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

1. It is claimed by appellant that the verdict is defective in that it does not find “ for the return of the property,” and is not “ in the alternative,” since the [292]answer of the defendant demands a return of the property.

The verdict for the defendant was special as to the value of the property, as required by the code. As to all other issues, it was general. This was sufficient to justify a judgment for the return of the property, or for the value thereof in case a delivery could not be had. Such a judgment would have consisted entirely of pure conclusions of law from the verdict. The code does not require the verdict to be special, except as to the value of the property, and the sole object of this exception is to enable the court to render an alternative judgment as required by section 667 of the Code of Civil Procedure. (Waldman v. Broder, 10 Cal. 379; Hunt v. Robinson, 11 Cal. 262; Pico v. Pico, 56 Cal. 453.)

' 2. But the judgment was not, in form or substance, in accordance with section 667 of the Code of Civil Procedure. The defendant was not entitled to judgment for the value of the property, except upon the condition that a return of the possession thereof could not be had. The judgment should be “ for a return of the property, or the value thereof in case a return cannot be had.” (Washburn v. Huntington, 78 Cal. 577.)