Opinion
Department Two
Appeal by plaintiff from an order of the Superior Court of the County of Kern, granting a new trial. Brundage, J.
COUNSEL
S. Solon Holl and George V. Smith, for Appellant.
J. W. Freeman and R. E. Arick, for Respondent.
Under the pleadings, the verdict and judgment should have been for a return of the property taken, or for its value. ( Section 667, C. C. P.) The verdict was not for the return of any number of sacks of wheat, as claimed in the complaint, nor was the estimate upon the number of sacks taken by the Sheriff, but simply for the sum of one thousand eight hundred dollars. Under Section 662, C. C. P., the Court was justified in vacating the verdict without an application by the defendant.
OPINION The Court:
This was an action to recover possession of one thousand three hundred and fifty-three sacks of wheat or the value thereof (alleged to be one thousand seven hundred and fifty dollars), and one hundred and fifty dollars damages and costs. The answer contained a general denial and the defense of justification by attachment. The case was tried by the Court sitting with a jury, and the trial resulted in the following verdict: " We, the jury in this cause, find a verdict for the plaintiff, Mrs. Garlick, and assess her damages at one thousand eight hundred dollars." On motion of the defendant the Court below set aside the verdict and granted a new trial, on the grounds that the verdict was against law and the evidence, and the damages were excessive, etc., and from the order granting a new trial, the plaintiff appeals.
The verdict did not cover the issues submitted to the jury. The value of the property was not found. Besides, the damages assessed were one thousand six hundred and fifty dollars in excess of the damages claimed by the plaintiff. The verdict was therefore against law and the evidence, and there was no error committed in setting it aside. When the verdict was rendered by the jury it would have been proper for the Court to have called their attention to the fact that it was incomplete, and remanded them to put it in proper form; but having omitted to do that it was not error afterwards to set it aside, on the motion for a new trial made by the defendant.
Order affirmed.