Brown v. Johnson , 45 Cal. 76 ( 1872 )

By the Court:

If at the trial of this action (replevin) it had distinctly ap-. peared that the personal property in controversy- had been hopelessly lost or had been destroyed, so that a judgment for its delivery would be necessarily unavailing, a failure to render judgment for its possession (under Section 200 of the Practice Act) would, at most, be but a technical error or omission,■ and one for which we would not reverse the judgment. And in support of such judgment, where, as here, the record discloses nothing on the -point, we will intend that the facts actually appearing below were such as to warrant its rendition. •

Judgment affirmed.