Meiggs v. Scannell — 1 Cal. Dist. Ct. 233

Majority

p. 233

MEIGGS vs. SCANNELL.

Twelfth Judicial District Court,

August, 1857.

Headnote

Remittitur—Repleyijb

What is the effect of the words “judgment reversed and cause rejnanded,” in a Ma$8= titur from the Supreme Court ?

The finding in the case of a verdict in replevin must recite the value of the pr©pe$iijv and the amount of damages for detaining the same if the property be returned.

This action was instituted in Oc.toher, 1856,'to recover possession of the ship " Madonna,” and damages for her detention, or the value o£ the vessel, .being.$6,000. The vessel was seized by the defeated 3S sheriff of San Francisco County, on an execution inter alias, and was claimed by. this plaintiff. The cause was tried, and the court, wíí&syt a jury, found that the plaintiff" was entitled to a recovery of tbs property.” The cause was appealed; the Supreme Court reversed and remanded the cause. The defendant then moved for judgment Wen that remittitur.

Whitcomb, Pringle Felton, for plaintiff.

B. 8. BrooTis, for defendant,

This is an action to recover possession of personal property. It was tried by the court Without a jury, and a finding htS, and a judgment thereon for the plaintiff, to wit: That they, wera esi&* tied to a recovery of the property. Upon appeal this judgment was “.reversed and cause remanded.” The defendant now asks, on ths remittitur, that a judgment be entered that the' plaintiff return the property, or pay the' defendant @2,000, “ the sworn value.” The plaintiffs gay that there must be a new trial,

Where an action is tried by a jury, and a general verdict rendered, if the judgment is reversed and cause, remanded, it will, in general, be aeeessary to have a new trial, and in any such case, it would be rather anomalous to have a record show a general verdict in favor of one party, and a judgment in favoi? of the other. In equity suits, under the old system, the evidence v/as before the same person who appEpS

p. 234

the law, and in case of appeal was also before the appellate court. Under our system it may be different in some cases, but generally there will be no occasion for a new trial. So, if a special verdict is found by a jury, or the action is tried by the court, and the facts are set forth in the finding, there will usually be no occasion for a new trial. But when from inadvertence, .or other cause, all the facts necessary to determine the rights of the parties as they shall stand after the law of the case is settled by the appellate court, and evinced by its opinion, are not found, it may be necessary to have a new trial.

In the present case there is no finding as to whether the property has been delivered to the plaintiff, nor does it appear by the pleadings, nor is there any finding of the value of the property, or any damages fbr the taking or detention. The only conclusion that the appellate court could draw from the record before it was, that the property still remained with the defendant; and that the only judgment necessary to give him his rights, was a judgment the reverse of the one given by the court below, namely, that the plaintiffs were not entitled to the recovery of the property. The affidavit of the plaintiff as to the value of the property, might be evidence on the trial, but it is not a fact in the case. Besides, the value to be paid is probably not the value at the time the property was taken, but the value at the time the property is to be delivered. The party,has not a right to the value absolutely, but only in lieu of the-property, if it cannot be found. If the property has deteriorated in value since the taking, the remedy is by assessing damages.

I can find no authority in the opinion of the Supreme Court, or in the language- of the remittitur, or in the facts as found on the trial, to give the defendant the judgment he asks. As neither party has asked to have a simple judgment that the plaintiffs are not entitled to a recovery of the property, which is the only one I am authorized to give, I shall at present only deny the defendant’s motion.