Kelly v. McKibben

Department No. 2, by the Court:

. The judgment in this case can be so modified as to make it conform to the requirements of § 667 of the Code of Civil Procedure. To accomplish this, no other guide than the plain provisions of that section and the findings on file will be necessary.

The mode of describing the property recovered in the judgment is not one that we can conscientiously recommend as a precedent. But the description is not uncertain. Certum est quod certum reddi potest. The reference in the judgment to the finding, and in the finding to the complaint, for a description of the property, is inexcusably circuitous, but not ambiguous. There is but one complaint in the action. When the amended complaint was filed, the original ceased to be the complaint in the case. It was superseded by the amended complaint. (Barber v. Reynolds, 33 Cal. 497.) The reference, therefore, is unmistakably to the amended complaint. We do not think that any intelligent person will experience any insurmountable difficulty in segregating the articles enumerated in the first finding from those specified in the complaint.

The fourth finding is clearly erroneous. The plaintiff was entitled to damages for the detention of the property, and not for the money by him expended in the pursuit of and endeavoring to regain it. It was error to include in the judgment the sum of $150 so found to have been expended.

Interest is allowed in the judgment upon the value of the property from the time it was taken from the possession of the plaintiff by the defendant. As no other damages for the detention are found or included in the judgment, we think that such interest may be regarded as damages for said detention. (Freeborn v. Norcross, 49 Cal. 313.)

This appeal is from the judgment, and as we have only the judgment roll before us, we cannot review the order denying the motion to retax costs. The memorandum of costs constitutes no part of the judgment roll.

Cause remanded to the Superior Court of the City and County of San Francisco, with directions to modify the judgment so that the plaintiff recover $775.80, with legal interest thereon from the date of the judgment, and that said judgment, in other respects, be made to conform to the views herein expressed.