Livestock Gazette Publishing Co. v. Union Stockyard Co.

The Court. This is is an action to recover the possession or value of certain personal property alleged to be wrongfully detained by defendants, and damages for its detention. The court below found among other things, as follows: That the plaintiff was the owner and [449] entitled to the possession of the property described in the complaint, and that the defendants unlawfully withheld the same from the plaintiff. “ That the value of' said property is seven hundred and fifty dollars.” “That the plaintiff has not suffered any damage by reason of the detention of said personal property by the defendants, nor have the defendants been guilty of oppression, or fraud, or malice.” And as conclusions of law the court found: “ That the plaintiff is entitled to the possession of all the personal property described in the complaint, if a delivery thereof can be had, or the value thereof, viz., the sum of seven hundred and fifty dollars, in case a delivery cannot be had, with costs of suit. Judgment was so entered, and in due time the plain- ■ tiff moved for a new trial upon the ground of the insufficiency of the evidence to justify the decision. The motion was made upon a bill of exceptions, which stated that “Upon the trial of said cause the following evidence was submitted to the court, and which was all the evidence offered or introduced upon the matter, or relevant to the issue of damages claimed to have been suffered by plaintiff.” There was then set out the testimony of six witnesses, which tended to show that the plaintiff had been damaged by the detention in a very considerable sum. Following this evidence was a specification of the particulars wherein the evidence is insufficient to justify the decision, as follows: “ The real question before the court being a question of damages claimed by plaintiff for the wrongful detention of its property, and the evidence-being wholly undisputed and uncontradicted as to the-damage, the decision of the court should have been for such an amount as would compensate the plaintiff.” The motion was heard by the successor of the judge who tried the case, and granted “ upon the ground that the evidence is insufficient to justify the decision.” From that order the defendants appeal. The only point made for a reversal is that the sped» [450] fication was insufficient to meet the requirements of the statute, and the order of the court was therefore unauthorized. Under our statute a motion for a new trial may be made upon a bill of exceptions or a statement of the case. (Code Civ. Proc., sec. 658.) And it is provided as to bills of exceptions that “ no particular form of exception is required, but when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient.” We think that under the circumstances of this case the specification should be held sufficient. The bill of exceptions expressly shows that the only question to be raised on the motion for a new trial was as to whether or not plaintiff was entitled, under the evideno, to damages for the detention of the property; the bill includes all the evidence bearing on that question; and the specification points to the sole question professedly Involved in the motion, and directs attention to that point, so that the opposite party might see that all the -evidence bearing on the issue, and proper to be considered by the court, was set forth in the bill. (McCullough v. Clark, 41 Cal. 304; Eddelbuttel v. Durrell, 55 Cal. 279; Newell v. Desmond, 63 Cal. 242; Tromans v. Mahlman, 92 Cal. 5.) We certainly think the specification sufficient in the case at bar, where the court made an order granting the motion for a new trial, and all intendments are in support of the correctness of that order; and we may justly presume, from the facts appearing on the face of the record, that the only issue raised by the motion was fairly and fully presented to the consideration of the court. It was not necessary for the plaintiff to prove oppression, fraud, or malice. Under such proof he might ¡have been awarded exemplary damages (Civ. Code, sec. 3294), but without it he was entitled to such damages as ■would compensate him for all the detriment proximately [451] caused by the wrong complained of. (Civ. Code, sec. 8333.) The order appealed from is affirmed.