Gardner v. Brown, 37 P. 240 (1894).
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Gardner v. Brown, 37 P. 240 (1894). Book View Copy Cite
⚠ Negative Treatment Overruled 1 negative ▼
M. C. GARDNER, Sr., Plaintiff and Respondent
v.
LOUIS BROWN, MORRIS BROWN, BENJAMIN SCHEIDMAN, JACOB KLEIN, C. H. PETERS and W. A. DONNELLY, Defendants and Appellants
Jul 5, 1894.
37 P. 240
Torreyson Summerfield , for Appellant: At the time of bringing this action plaintiff and respondent well knew that appellants, nor neither of them, had either actual or constructive possession or control of the property, or any part thereof, which he sought to recover. The very gist of the action of claim and delivery is the unlawful detention of the property at the time of the commencement of the action. ( Riciotto v. Clement , 94 Cal. 105 ; Phillips v. Schall , 21 Mo. App. 38 ; Pilkington v. Trigg , 28 Mo. 95 ; Rowe v. Hicks , 58 Vt. 18 ; Haggard v. Walland , 6 Neb. 271 ; Mercer v. James , 6 Neb. 406 ; Willis v. DeWitt (S. D.), 52 N. W. 1091; Cobbey on Replevin, sec. 12; Wells on Replevin, sec. 135.) Defendant must be in either the actual or the constructive possession at the time of the commencement of the suit, and be detaining the property at such time, or the action of claim and delivery will not lie. ( 94 Cal. 105 ; 28 Mo. App. 454 ; 52 N. W. 1091; 5 Mo. App. 565 ; 25 Wis. 705 ; 18 Iowa, 257 ; 69 N. C. 456 ; 106 Mass. 599 ; 3 Sanf. (N. Y.) 707; 12 Barb. (N. Y.) 347; 45 Kan. 130 ; 20 Kan. 208; 60 Mich. 357 ; 8 Minn. 467; 59 Miss. 340 ; 40 Miss. 760; Cobbey on Replevin, secs. 61 and 64; Wells on Replevin, sec. 134.) The California statute (sec. 509, et seq. ) is almost literally identical with our claim and delivery statute, and we have every reason to believe that our own was modeled after it. When the motion for a non-suit was made the court below ruled that appellants' answers admitted their possession of the cattle when the suit was commenced, and so ruled when the motion was renewed and the affirmative allegations of the answers were pointedly emphasized. In these rulings the court seriously erred to appellants' prejudice. Under exactly similar pleadings in 94 Cal. 105 , it was decided that possession was not admitted. In Feder v. Abrahams , 28 Mo. App. 454 , where defendant allowed default to be entered against him, but the court held it is not an admission of possession, and that plaintiff could recover only upon affirmative proof of the allegations contained in his complaint. The court erred in overruling the motion for a non-suit made by appellants Brown, Schneideman, Klein and Peters. ( Blatchford v. Boyden , 122 Ill. 657 ; Maxey v. White ,, 12 Barb. 347; Cobbey on Replevin, sec. 436; Wells on Replevin, sec. 143.) The court erred in admitting evidence, over appellants' objections, to prove the highest market value of the cattle between the date of the levy and the time of trial, and also in instructing the jury that if the value of the cattle was found to be fluctuating their value might be fixed at the highest price between the date of levy and the rendition of the verdict. The true rule for the ascertainment of personal property in actions of claim and delivery is to find its value existing at the time of trial. This is stare decisis in Nevada. ( O'Meara v. N. Am. Co. , 2 Nev. 112 ; Bercich v. Marye , 9 Nev. 312 ; Buckley v. Buckley , 12 Nev. 423 .) Buckley v. Buckley, supra , was an action in claim and delivery for live stock. In his concurring opinion Justice Beatty said: \At what time
Belknap.
then

By the Court,

Belknap, J.:

This is an appeal from an order overruling a motion for a new trial. The action was in the ordinary form of claim and delivery under the statute for the recovery of the possession of a certain number of cattle and horses alleged to be withheld and detained by the defendants.

The answer justifies the taking by the defendants, one of whom is the sheriff of Lyon county, under an execution against J. H. Gardner, a son of the plaintiff, as his property, and a subsequent sale in the month of January, 1893, two months before this suit was commenced. The proofs showed without question that the cattle were sold as alleged in the answer. Upon these facts the question arises, has the plaintiff established a cause of action in claim and delivery against the defendants? In order to have established his [*168] case, he should have shown a possession of the demanded property in the defendants, as he had alleged in his complaint. The detention is the gist of the action, and recovery of :thc possession of the property its primary object. The statute has provided all the appliances to this end, and the allegations of the complaint are consistent with this view. The proofs show a fatal variance, and the requirement of the statute that the complaint shall contain a logical statement of the facts constituting the cause of action has been disregarded.

In his recent work on Replevin, Mr. Oobbey states the law as follows: “To enable plaintiff to maintain an action for the recovery of specific personal property, the defendant must be in possession thereof at the commencement of the action. When the petitioner alleges that the defendant is in possession, and the proof shows the contrary, there is such a variance between the allegations and the proof as disables plaintiff from recovery.” (Sec. 61.)

The New York cases have adopted a different view (Nichols v. Michael, 23 N. Y. 264), but the great weight of authority is the other'way. (Coffin v. Gephart, 18 Iowa, 257; Riciotto v. Clement, 94 Cal. 105, 29 Pac. 414; Haughton v. Newberry, 69 N. C. 456; Hall v. White, 106 Mass. 599; Aber v. Bratton, 60 Mich. 357, 27 N. W. 564; Griffin v. Lancaster, 59 Miss. 340; Moses v. Morris, 20 Kan. 208; Davis v. Randolph, 3 Mo. App. 454; Feder v. Abrahams, 28 Mo. App. 454; Willis v. De Witt, (S. D.) 52 N. W. 1090.)

We should have hesitated before reversing this case upon this point if substantial justice had been done by the verdict. But the measure of damages established at the trial was wrong, and for this reason, if for no other, we are constrained to remand it. The value of cattle — the subject of the litigation — had fluctuated during the pendency of the suit, and the jury were instructed that the plaintiff could recover the highest value between the taking and the trial.

In O’Meara v. Mining Co., 2 Nev. 112, this court decided that in this class of cases, when the plaintiff- asks for the return of the specific property, or its value, if a return cannot be had, the value of the property at the time of trial is the only complete indemnity. To the same effect were the [*169] rulings in the subsequent cases of Bercich v. Marye, 9 Nev. 312, and Buckley v. Buckley, 12 Nev. 428.

In Boylan v. Huguet, 8 Nev. 345, we beld that the value of the property at the time of the conversion, with interest from that date, together with such special damages as the plaintiff may be entitled to, was the rule in trover. New decisions sbow that the purpose of the court has been to fully indemnify the injured party without punishing the wrongdoer.

A motion ivas made in this court before its submission upon the merits for the purpose ’of correcting the record' by striking out one of the instructions given'to tbe jury at tbe trial upon the ground that it had not in fact been given at the trial. We denied the .motion upon the ground that the statutes invest only tbe judges of the district court with authority to settle statements upon motion for new trial. In this present case tbe statement was so settled, as appears bjr the certificate of tbe judge. This court has no power to alter or amend it. It is the record upon which we are to act.

Judgment reversed, and cause remanded.’