French v. Ginsburg

Canty, J. The plaintiff brought an action of replevin, and took possession of the property under the provisional remedy. The defendant Ginsburg alone answered, denying plaintiff’s ownership and right to possession, alleging ownership in himself, and alleg [266] ing that plaintiff wrongfully took the property from him, and demanded judgment for damage for such taking, and for the value of the property. On the trial, defendant had a verdict, the value of the property was found to be $350, interest $5.71, and damages $75. Thereupon defendant made before the court a motion for judgment, in which he stated that he elected to take a money judgment only, and not an alternative judgment for the return of the property or for the value thereof, found by the jury, in case a return cannot be had. The court below denied his motion, ordered judgment in the alternative form, and from the judgment so entered defendant appeals. We are of the opinion that defendant’s motion was rightfully denied, and that the judgment should be in the alternative. In Sherman v. Clark, 24 Minn. 43, where the referee found as a fact that the defendant had disposed of the property, and a recovery of it could not be had, and for that reason ordered a judgment for plaintiff for the value only, this court held that a judgment should have been ordered in the alternative, although the plaintiff appeared to be satisfied with the order as it stood. Our statute puts the plaintiff and defendant on an equal footing in this respect, and provides for an alternative judgment for the one as well as the other, and there is no provision, as there are in the statutes of some states, allowing the party entitled to judgment to elect whether or not he will take it in the alternative. Neither is the taking of the property under the proceedings in the action at the commencement of the suit such a taking as amounts to a conversion. Judgment affirmed. (Opinion published 59 N. W. 189.)