W. E. CRUSE, Appellant, v. C. W. ADAMS, Respondent

[Civ. No. 2178. First Appellate District. September 20, 1917.] W. E. CRUSE, Appellant, v. C. W. ADAMS, Respondent. Claim and Delivery — Mortgaged Personal Property — Amount op Alternative Judgment.—In an action in claim and delivery to recover the possession of mortgaged personal property, the alternative. portion of the judgment in favor of the defendant who admitted plaintiff’s ownership but justified retention under the mortgage is properly for the value of the property without regard .to the amount due on the mortgage, where the only question litigated was the right to the possession of the property. APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge. The facts are stated in the opinion of the court. J. O. Traber, and A. Ellenburg, for Appellant. Ernest Klette, for Respondent. [MAJORITY — THE COURT.] THE COURT. This action was in claim and delivery to recover possession of certain personal property. Defendant admitted ownership in the plaintiff, but justified his retention of the property under a chattel mortgage executed by plaintiff. Upon the institution of the proceedings the sheriff took possession of the property and subsequently delivered the same to plaintiff. The trial court rendered judgment in favor of the defendant for the return of the property or, in the event that delivery thereof could not be had, then for the sum of $937.50, the value thereof. It is the claim of the appellant that the alternative portion of the judgment represents a sum in excess of the amount due on the indebtedness existing between the parties and secured by the chattel mortgage. We have no means of determining this fact. That question was not involved in the action nor determined therein, which was purely possessory in its nature, and the only question litigated was the right to the possession of the property. The form of judgment was the only one authorized. Judgment affirmed.