ERROR to the Supreme Court of the Territory of Montana. The Civil Practice Act of the Territory of Montana thus enacts: 'In an action to recover possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention of them.' This act being in force, Griswold sued Boley in one of the District Courts of Montana for the recovery of the possession of certain cattle. The jury found as follows: 'For the return of the cattle to the plaintiff, and in case a return of the same could not be had, $3000, the value thereof; and $800 damages for the detention.' On this verdict the court entered a judgment that plaintiff recover from defendant the sum of $3800, with interest, &c. No alternative judgment, as provided by the Practice Act, for the possession or return of the property, was rendered upon the verdict by the District Court. The defendant took the case to the Supreme Court, which affirmed the judgment of the District Court. Thereupon he brought the case here.
The opinion of the court was delivered by: The Chief Justice delivered the opinion of the court.
Messrs. J. Hubley Ashton and N. Wilson, for the plaintiff in error:
The section of the Civil Practice Act of Montana, on which this case depends, appears to be identical with section 277, of the New York Code, which prescribes the form of judgment to be taken in actions to recover the possession of personal property. Upon that code the Court of Appeals of New York has decided*fn1 *
that neither a plaintiff nor a defendant, in an action to recover the possession of such property, can take judgment for the value of property, except as an alternative; and that if a judgment is taken for the value alone, and no alternative judgment is entered for the return of the property, it will be erroneous, and that for such error the judgment for the value will be reversed by an appellate court.
This seems a rational view of the case, and comes before this court with the support of a tribunal particularly conversant with the general principles of the Civil Practice Act under consideration.
Mr. Robert Leech, contra.
It is true that under the Civil Practice Act of Montana there can be no judgment for the value if there can be a delivery of the property, but it is not true that a judgment is necessarily erroneous if the alternative is not expressed upon its face. The court must be satisfied that the delivery cannot be made before it can adjudge absolutely the payment of money. But, if so satisfied, it may so adjudge. A special finding to that effect is not necessary. An absolute judgment for the money is equivalent to such a finding.
In one part of this record it appears that the verdict was for the return of the property, or, in case that could not be made, for $3000, the value, and $800 damages for the detention. The judgment was for the money, and the presumption is, in the absence of anything in the record to the contrary, that before it was rendered the court had become judicially satisfied that the property could not be returned. In a court of error every presumption is in favor of the validity of the judgment brought under consideration. Error must appear affirmatively before there can be a reversal.