Floyd v. Riskin

WOOD, J. Plaintiff commenced a claim and delivery action against defendant to recover possession of a valuable pearl necklace. The action was commenced on June 1, 1936, and on the same day the sheriff took possession of the necklace under proper legal process. The return of the necklace to defendant was not required within the statutory period and on June 9, 1936, it was delivered to plaintiff. In defendant’s answer, filed June 20th, he did not claim a return of the necklace, but asked that plaintiff take nothing by her complaint and that he recover costs of suit. With his answer defendant filed a cross-complaint in which he asked judgment against plaintiff in the sum of $1,000 with interest at the rate of two per cent per month from November 11, 1935, but did not ask the return of the necklace. The trial court made separate findings and judgments on the complaint and on the cross-complaint. In the judgment on the complaint it is provided that “judgment is given against plaintiff for the return of said property to defendant, or, in the event that a return is not had within ten days from the date hereof, judgment is given against plaintiff and in favor of defendant for $1,000.00, together with interest thereon at the rate of 2 per cent per month from the 11th day of November, 1935, until [299]paid, together with defendant’s costs and disbursements incurred in said action amounting to the sum of $34.55. It Is Further Ordered, Adjudged and Decreed that on the payment of the sum of $1,000.00 together with interest thereon at the rate of 2 per cent per month from the 11th day of November, 1935, and defendant’s costs and disbursements incurred in said action, that the plaintiff shall be entitled to the immediate and exclusive possession of said personal property.” In the judgment on the cross-complaint it is provided “that the cross-complainant do have and recover of and from the cross-defendant the sum of $1,000.00 together with interest thereon at the rate of 2 per cent per month from the 11th day of November, 1935, until paid, together with cross-complainant ’s costs and disbursements incurred in said action, amounting to the sum of $-. It Is Further Ordered, Adjudged and Decreed that upon the payment of the said sum of $1,000.00 together with interest thereon at the rate of 2 per cent per month from the 11th day of November, 1935, and cross-complainant’s costs and disbursements incurred in said action, that the cross-defendant shall be entitled to the immediate and exclusive possession of said personal property described as one Oriental pearl necklace having 85 graduated pearls, with platinum clasp attached, said clasp containing one square-cut emerald weighing 11.65 carats.” Plaintiff has appealed from both of these judgments.