Ryan v. Fitzgerald

Citations

• 87 Cal. 345
• 25 P. 546
• 1891 Cal. LEXIS 984

Syllabus

<p>Claim and Delivery — Form of Verdict—Delivery of Property Replevied. — In an action of claim and del very, it is not neees ary that the verdict shall provide for any delivery of the property, if such could be had.</p> <p>Id.— Conclusion of Law — Judgment. —When the verdict finds that plain-has the right of possession, the right to a delivery, if it can he had, or if not, to the value of the property as found by the jury, in the alternative, is a conclusion of law, which the judgment must contain, but not the verdict.</p> <p>Id. —Damages ■—Taking and Detention — Presumption.—■ Damages may he claimed and recovered in the action for both taking and detention, and when the verdict is for a sum certain as damages, it will be presumed to cover both grounds, if both are alleged in the complaint.</p> <p>Id. — Uncertainty of Verdict — Appeal — Objection for First Time.— An objection to the form of a verdict upon the ground of uncertainly in the statement of damages must he taken in the court below, and cannot he urged on appeal for the first time.</p> <p>Id. —Verdict and Judgment for Part of Property—■ Res Adjudicata.— When the plaintiff obtains a verdict and judgment for only part of the property sued for, and the verdict and judgment are silent as to the remainder, it must he held that plaintiff was denied any further relief, and lie is precluded from further litigation as to the remainder.</p> <p>Id. — Return oe Property not Recovered — Appeal — Presumption — Modification of Judgment.—If the defendant has asked for a return of the property replevied, and it does not appear that he has given proper bond and sureties for the return, it must be presumed that the whole of the property claimed has been delivered to the plaintiff; and if the plaintiff’s verdict and judgment are limited to a recovery of part only of the property, and no relief is awarded to the defendant, the judgment will be modified, on appeal, so as to require the return of the residue to the defendant.</p