Banning v. Marleau

McFarland, J. This is an action to recover certain personal property, or its value. Judgment went for defendant, and plaintiff appeals from the judgment upon the judgment-roll and a bill of exceptions.

The court found that “the plaintiff is now in possession of said above-described property”; and the entire judgment is that “ the defendant, W. H. Marleau, do have and recover of and from Mary H. Banning, the plaintiff herein, the following personal property, viz: (describing it) and that said property be returned by plaintiff to defendant, or the value thereof, being the sum of six hundred dollars, in case a return cannot be had, be paid by plaintiff to defendant, together with costs and disbursements”; but there is no prayer, claim, or demand of any kind in the answer for a return of the property or its value; and, this being so, the judgment for its return cannot stand. (Code Civ. Proc., secs. 627, 667; Gould v. Scannell, 13 Cal. 431; Pico v. Pico, 56 Cal. 459.) It cannot he reasonably expected that for the purposes of this case we should ignore the statute and overrule former decisions. We might, no doubt, remand the cause, with directions to change the judgment into one which would simply give costs to defendant; but as we are not entirely satisfied with the case in other respects, we think that the ends of justice require a new trial.

[240]Plaintiff claims ownership of the property sued for— consisting mostly of certain livestock on a ranch—and defendant, a constable, took it as the property of one Hannon, under two writs of attachments issued by a justice of the peace. The findings on the main issues are merely “ that on the 30th of November, 1891, in Los Angeles county, California, the plaintiff was not, nor has she at any time since said date been, the owner of and entitled to the possession of the property described in the complaint. That the defendant herein, on said date, in Los Angeles county, did not wrongfully come into possession of said property,” and does not wrongfully detain the same; and “ that on the thirtieth day of November, 1891, Joseph Hannon was the owner and in possession of the property above described, and on said date, the defendant, a constable in said county, seized said property by virtue of two writs of attachments against said Hannon, one in favor of W. H. Barbell, the other in favor of P. J. Hardy, aggregating the sum of five hundred and seventy-nine dollars, which writs were duly issued by W. A. Gaines, a justice of the peace of said county.” These findings are not specific enough to show upon what theory the case was decided— that is, whether it was upon the theory that plaintiff was not the owner of the property in any sense, or upon the theory that a sale of said property by Hannon to plaintiff was void as against creditors, for want of delivery and an immediate and continued change of possession under section 3440 of the Civil Code. If the findings mean that as between plaintiff and Hannon, the latter was and the former was not the owner of the property at the time of the attachment, then they are not supported by the evidence; for it clearly appears that Han-non before that time had sold whatever interest he had in the property to plaintiff, and had given her a written transfer of the same which passed the title. (Civ. Code, secs. 1053-57.) If, on the other hand, it was meant that the sale was not followed by such possession as would make it valid as against creditors of Hannon,