IMPERIAL VALLEY AUTO COMPANY (a Copartnership), Appellant, v. MINNIE MAY TONEY, Administratrix, etc., Respondent

[Civ. No. 3099. Second Appellate District, Division One. May 18, 1920.] IMPERIAL VALLEY AUTO COMPANY (a Copartnership), Appellant, v. MINNIE MAY TONEY, Administratrix, etc., Respondent. Claim and Delivery—Pleadings—Findings—-Unwarranted Affirmative Belief to Defendant.—Where the answer filed by the defendant in an action to recover possession of certain personal property does not claim a return of the property, and there is nothing in the pleadings or findings to indicate that the property was delivered to the plaintifE, or was not all the time held in possession of the defendant, a judgment that defendant recover from plaintifE the said personal property, or, if delivery thereof cannot be had, then the defendant have judgment in a stated sum (found to be the value of the property, less a certain allowed credit), and for costs, cannot be sustained, in so far as it grants to the defendant affirmative relief, except as a judgment for costs. APPEAL from a judgment of the Superior Court of Imperial County. R. Y. Williams, Judge presiding. Modified and affirmed. Chas. L. Childers for Appellant. James W. Glassford for Respondent. [MAJORITY — CONREY, P. J.] CONREY, P. J. Action brought by plaintiff to recover possession of personal property. Judgment for defendant, and the plaintiff appeals therefrom. The judgment-roll is the only record before us. The judgment, in terms, is that the defendant recover from plaintiff the said personal property, or, if delivery thereof cannot be had, then the defendant have judgment in a stated sum (found to be the value of the property, less a certain allowed credit), and for costs. The answer filed by defendant did not claim a return of the property. Indeed, there is nothing in the pleadings or findings to indicate that the property was delivered to the plaintiff, or was not all the time held in possession of the defendant. Under such circumstances, that part of the judgment which grants to the defendant affirmative relief cannot be sustained, except as a judgment for costs. (Code Civ. Proc., secs. 627, 667; Banning v. Marleau, 101 Cal. 238, [35 Pac. 772].) It is ordered that the judgment be modified by striking therefrom that part thereof which provides that defendant recover the described automobile, or, in ease delivery thereof cannot be had, that defendant have and recover the sum of $405.90. As so modified the judgment is affirmed. Shaw, J., and James, J., concurred.