
    [No. 13867.
    Department One.
    November 27, 1890.]
    JAMES A. COOKE, Respondent, v. MARTIN G. AGUIRRE, Appellant.
    Replevin—Findings — Omission of Material Issues — Judgment •—Appeal. — In an action for the recovery of personal property, where the complaint alleged the plaintiff’s ownership and right to immediate possession of the property, giving its value, and its wrongful taking and detention by the defendant, to his damage in a certain sum, and the defendant answered, denying all the allegations of the complaint except the value, if no findings are made upon the issues as to whether the plaintiff was entitled to the possession of the property or whether he was damaged by the taking, a judgment for the return of the property will be reversed upon appeal.
    Id.—Necessity of Alternative Judgment. —In such an action, the judgment should be in the alternative, for the return of the property or its value; a judgment merely for the return is erroneous.
    Id.—Description in Judgment — Uncertainty__A judgment for the possession of personal property which merely describes- it as “two stallion horses, ” and does not refer to any pleading or other paper for further description, is bad for uncertainty, and will be reversed.
    Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
    The facts are stated in the opinion of the court.
    
      H. H. Appel, Willis & Appel, and Gage & Robarts, for Appellant.
    The question whether the taking was wrongful is a conclusion of law. A conclusion of law cannot be regarded as a finding of fact. (Paulson v. Nunan, 64 Cal. 290.) It is the duty of court to find upon every material issue. (Kennedy v. Berry, 52 Cal. 87; Watson v. Cornell, 52 Cal. 91; Le Clert v. Oullahan, 52 Cal. 252; Swift v. Canavan, 52 Cal. 417; Glascock v. Ashman, 52 Cal. 420.) When findings are not waived, failure to find upon a material issue is fatal to judgment. (Laughlin v. Wright, 63 Cal. 113; Cassidy v. Cassidy, 63 Cal. 352; S. P. R. R. Co. v. Crampton, 63 Cal. 537; Roeding v. Perasso, 62 Cal. 515.) The judgment, if valid, is only con-elusive of the question as to whether the plaintiff is the owner of the property, or Cyrus F. Cooke, the attached debtor, under whom the sheriff justifies; but it is not conclusive upon the question of damages. This issue is raised by the pleadings, and the court should have found thereon. (Nickerson v. Cal. Stage Co., 10 Cal. 521; Thompson v. Corpstein, 52 Cal. 653.) The issue as to whether plaintiff was entitled to the possession of the property is material, as defendant would be entitled to costs if entitled to possession under the writ of attachment. (O’Connor v. Blake, 29 Cal. 316; Wildman v. Radenaker, 20 Cal. 616; Cunningham v. Skinner, 65 Cal. 385.) The judgment does not describe the property with sufficient certainty, so'that the judgment could he properly enforced by execution. (Welch v. Smith, 45 Cal. 230; Root v. Woodruff, 6 Hill, 418; Relyea v. Drew, 1 Denio, 561; Wilbur v. Brown, 3 Denio, 356; Walker v. Moseley, 5 Denio, 102; Kelley v. McKibben, 53 Cal. 13.) The judgment does not conform to the requirements of section 667 of the Code of Civil Procedure, for the reason that it is not in the alternative. (Kelly v. McKibben, 54 Cal. 193.) The judgment should provide for the return of the property; or in case a delivery cannot be had, then for its value (stating it). (Nickerson v. Chatterton, 7 Cal. 568; Nickerson v. Cal. Stage Co., 10 Cal. 520; Clary v. Rolland, 24 Cal. 148; Campbell v. Jones, 38 Cal. 508; McCue v. Tunstead, 66 Cal. 486; Brichman v. Ross, 67 Cal. 601; Stewart v. Taylor, 68 Cal. 5.)
    
      William Young, and K. C. Carr, for Respondent.
    The findings must be of ultimate facts or of such probative facts as that the court is enabled to say that the ultimate facts necessarily result therefrom. (Coglan v. Beard, 65 Cal. 62; Coveny v. Hale, 49 Cal. 552.) Had the court found upon the question of damages, it must have been against the defendant for nominal damages at least, and when such is the case, it is no ground for reversal. 
      (Hutchings v. Castle, 48 Cal. 156; Dougherty v. Miller, 38 Cal. 550.) Even had the findings shown the plaintiff to be entitled to nominal damages only, and the judgment been for the defendant, that would not be cause for reversal of the judgment on appeal. (McAllister v. Clement, 75 Cal. 182; McCourtney v. Fortune, 57 Cal. 617; Johnson v. Perry, 53 Cal. 354.) The point raised that the judgment" should have been in the alternative form is raised for the first time in this court, and ought not to be considered. (Crosett v. Whelan, 44 Cal. 203; Brumagim v. Bradshaw, 39 Cal. 33.) There is authority for the claim that a judgment in the alternative is the proper form in actions of this kind, but where the defendant could not be prejudiced by the omission to make it so, and where it appears that the judgment is right as doing justice between the parties, the judgment ought not to be reversed and anew trial granted. (Waldman v. Broder, 10 Cal. 380.) The failure to find in the alternative was at most only a technical error; and it has been held that it is not in itself sufficient ground to justify a reversal of the judgment. (Brown v. Johnson, 45 Cal. 76; De Thomas v. Wetherby, 61 Cal. 97.) This court will not reverse a judgment for an error which cannot injure the appellant. (Dougherty v. Miller, 38 Cal. 550; Garwood v. Wood, 34 Cal. 248; Larco v. Casaneuava, 30 Cal. 561; Hoag v. Pierce, 28 Cal. 188; Tyler v. Green, 28 Cal. 407; 87 Am. Dec. 130.)
   Works, J.

This is an appeal on the judgment roll from a judgment for the recovery of personal property. The plaintiff alleged that he was the owner and entitled to the immediate possession of the property, giving its value, and that the defendant had wrongfully, and without the plaintiff’s consent, taken and retained possession thereof, and detained the same from him; that he had demanded possession of the property, which was refused; and that he had been damaged in the sum of one hundred dollars. The defendant answered, denying the ownership of the plaintiff, or his right to possession, or that he had wrongfully taken or wrongfully detained the property, or that the plaintiff had been damaged; and alleging, also, that the property was owned by one Cyrus F. Cooke. He also justified, as sheriff, by alleging that said Cooke was the owner of the property, and that he had taken possession of the same by virtue of a writ of attachment, regularly issued against Cooke, and placed in his hands for service as such sheriff.

The answer did not put in issue the value of the property, as alleged in the complaint. The court found that the plaintiff was the owner and in possession of the property, and that the defendant, in his official capacity as sheriff, by virtue of a writ of attachment issued against said Cyrus F. Cooke, wrongfully took possession of the property, and still held the same. There was no finding that the plaintiff was entitled to the possession of the property, or its value, or the amount of plaintiff’s damages. The property was sufficiently described in the complaint. The court rendered the following judgment: “ Wherefore, by reason of the law and the findings aforesaid, it is ordered, adjudged, and decreed that James A. Cooke, the plaintiff, do have and receive of A. G. Aguirre (sheriff), the defendant, judgment for the return of the property, to wit, two stallion horses, together'with said sheriff’s costs and disbursements incurred in this action, amounting to the sum of sixty-two and five hundredths dollars ($62.05).”

The appellant contends that the findings do not support the judgment; that the court did not find on all the material issues; and that the judgment is invalid, because it does not sufficient! describe the property, and is not in the alternative, as required by law.

The questions whether the plaintiff was entitled to the possession of the property, and whether he was damaged by the taking, were put in issue by the pleadings. Both of these were material issues. One of them, at least, must have been found in favor of the plaintiff, to entitle him to recover. There was no finding as to his right to the possession. For this reason, the judgment is not supported by the findings. The question of damages should have been found upon, but the appellant cannot reasonably ask for a reversal of the case because a judgment for damages was not rendered against him. The judgment was erroneous, because not in the alternative, as required by section 667 of the Code of Civil Procedure (Berson v. Nunan, 63 Cal. 550; Stewart v. Taylor, 68 Cal. 5); and for the further reason that it contained no sufficient description of the property. It contains no sufficient description of the property, nor does it refer to any other pleading or paper for such description.- Such a judgment is bad for uncertainty. ( Welch v. Smith, 45 Cal. 230; Kelley v. McKibben, 53 Cal. 13.)

Judgment reversed.

Paterson, J., and Fox, J., concurred.  