Pico v. Martinez

Sharpstein, J.

This is an appeal from a judgment in an action of claim and delivery, and the transcript contains nothing beyond a judgment roll. It appears by the findings that the plaintiff let to the defendant certain flocks of sheep and goats for the term of three years, from the 6th day of April, 1878, upon certain terms and con-, ditions, with which defendant fully complied. On the 6th day of May, 1878, the plaintiff commenced this action for the recovery of said sheep and goats, or for their value. The Court found that said sheep and goats were of the value of $1.50 per head, and that the defendant was entitled to judgment for the possession of them, or in case a delivery could not be had, for the value of them, and rendered judgment accordingly. The only question that arises upon these findings is, whether the defendant, who had only a special or limited interest in the property, could recover of the plaintiff, who was the general owner, more than the value of such special or limited interest. The pleadings and findings show that the defendant had only a limited or special property in the sheep and goats replevied, and that the general property in them was in the plaintiff.

In New York and Wisconsin, whose codes arc substantially the same as ours, as to the character of the judgment to be rendered in a case like this, it has been held that the true value to be assessed and recovered by the defendant is the value of his special or limited property in the goods replevied. (Searner v. Luce, 23 Barbour, 240 ; Booth v. Ableman, 20 Wis. 21.) There is no finding as to the value of the defendant’s special or limited property in the sheep and goats; and in the absence of any statement on motion for a new trial, or bill of exceptions, we are not advised whether there was any evidence of its value before the Court. We are satisfied, however, that the value recovered should have been the value of defendant’s special or limited property only in the sheep and goats. We discover no other error in the record.

Judgment reversed, and cause remanded for a new trial.

Myeick, J., concurred.