Carson v. Applegarth

By the Court, WHITMAN, J. : Respondent brought his action to recover certain specific personal property. Of that property a portion had been delivered to him, a portion not. Appellants claimed a return. The following verdict was rendered: “ We, the jury in the above entitled cause, find for plaintiff in the sum of three hundred and one dollars.” Upon this verdict, judgment was rendered for the amount found, and costs. [189] Appellants first object that the verdict and judgment are not in accordance with the statute regulating the practice in such cases, referring particularly to sections one hundred and seventy-nine and two hundred and two of the Practice Act as follows : Sec. 179. “ In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury, if their verdict-be in favor of the plaintiff, or if, being in favor of the defendant, they also find that he is entitled to a return thereof, shall find the value of the property.” * * * * Sec. 202. “ In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had.” * * * * * The statute further provides the peculiar execution which shall follow ; so there appears intended by the provision referred to, first, the verdict — the basis; next, the judgment; next, the execution; all in the alternative in cases similar to the present. Upon the verdict in the case, no proper judgment could be rendered, and upon the judgment no statutory execution could issue. To the defendant in an action of this kind, against whom a verdict is found, always belongs the right if the property has not been delivered to deliver it himself; and in such case it is not at plaintiff’s option to take the property or its value. If he cannot get the property, then he may claim its value, but not otherwise. The objection taken is decisive of the case. The jury should have rendered an alternative verdict as to the property not returned. This is a point upon which there is no conflict of authority. (Lambert v. McFarland, 2 Nev. 58; Fitzhugh v. Wiman, 9 N. Y. [5 Seld.] 559; Ford v. Ford, 8 Wis. 401; Wallace v. Hilliard, 7 Wis. 628.) The judgment of the District Court and its order refusing a new trial are reversed, and the cause remanded.