Consolidated Nat. Bank of Tucson v. Cunningham

• Decision Date: 15 December 1922
• Docket Number: Civil 1991
• Citation: 24 Ariz. 437,210 P. 850
• Parties: CONSOLIDATED NATIONAL BANK OF TUCSON, Appellant, v. C. J. CUNNINGHAM, Appellee
• Court: Arizona Supreme Court

210 P. 850

24 Ariz. 437

CONSOLIDATED NATIONAL BANK OF TUCSON, Appellant, v. C. J. CUNNINGHAM, Appellee

Civil No. 1991

Supreme Court of Arizona

December 15, 1922

APPEAL from a judgment of the Superior Court of the County of Pima. Samuel L. Pattee, Judge. Reversed and remanded.

Mr Francis M. Hartman, for Appellant.

Messrs Wright & Darnell, for Appellee.

OPINION

McALISTER, J.

In this action the Consolidated National Bank of Tucson seeks to recover from C. J. Cunningham the possession of a 1914 model Cadillac automobile or its value. It obtained possession of the car by filing the required affidavit and bond, but the jury by its verdict said that the defendant, Cunningham, was its owner and entitled to its possession, and that its value at the time of the commencement of the action was $1,000, and in pursuance of the right conferred by paragraph 1614, Civil Code of 1913, he elected to take its value instead of the car itself, whereupon judgment was entered in his favor for this sum. From this judgment the bank appeals.

The complaint alleges that "the actual value of said property is approximately the sum of $1,000," and the affidavit and bond are to the same effect, while the answer contains an allegation that its actual value is $1,200. One of appellant's witnesses, a garageman, testified however, that "at the present time I would not give $200 for it," and immediately afterwards he was asked on cross-examination:

"At the time you took the car under the orders of the sheriff before the boost in automobile prices what was it worth?"

Then this colloquy followed:

"The Court: Gentlemen, aren't you bound by these allegations on that question?

"Mr. Wright: I think so.

"Mr. Hartman: I don't think so.

"Mr. Wright: If they allege a thousand dollars, they can't go back on that.

"The Court: You can't allege it is worth a thousand and then seek to prove it was worth less."

At the conclusion of the evidence the court charged the jury, in part, as follows:

"Another question that you will have to pass upon is the value of the property. The plaintiff in its affidavit, which is filed in this case, and in its complaint, says the property is worth a thousand dollars. The defendant says it is worth $1,200. Both parties are bound by their statement, and the jury, of course, is bound by the issues presented by the pleadings. So that while it is for you to find the value of the property, under the pleadings in this case you cannot find it to be less than a thousand dollars nor more than $1,200, within that narrow margin. You can find either one of those figures or anywhere between them, accordingly as you think the evidence warrants. You will find that value and insert it in the form of verdict to be furnished you. . . .

"If you find for the plaintiff, the form of your verdict will be: 'We, the jury, duly impaneled and sworn, upon our oaths, do find that the plaintiff is the owner of the property described in the complaint, and that it was at the time this action was brought entitled to its possession, and that the value of said property at the time this action was commenced was the sum of' blank dollars, inserting the value that you find of the property at the time the suit was commenced."

Appellant contends that the first instruction, upon which its chief assignment is based, is erroneous for the reason that the plaintiff in a replevin action is not bound by his allegation of the value of the property sought to be recovered, but is permitted to show by testimony that it is less than that alleged, and this notwithstanding the answer admits the valuation placed upon it in the complaint. It is true the answer does not contain a specific admission to this effect, but one is necessarily included in the allegation that the actual value is $1,200. The contention of appellee is based upon the proposition that one is bound by his pleading. This is the rule in most cases, and rightly so, because one should not be permitted to prove that something which he has alleged to be true is in fact, untrue, since the other party may have gauged his actions in accordance with the pleading. To permit him to "change front" in this manner at the trial would in many cases operate to his opponent's disadvantage. It is only where the allegation is material, however, that any harm might result; hence it is necessary to determine if it is essential to plaintiff's cause of action that the value of the property be stated in the complaint.

The statute is silent as to the facts a complaint seeking the recovery of specific property shall contain, but it does provide what an affidavit shall show when the plaintiff desires to take immediate possession, and the value of the property is one of the things enumerated. Paragraph 1604, Civ. Code 1913. But the affidavit forms no part of the complaint, for whether a cause of action has been stated must be determined by the averments of the latter unaided by the affidavit, the proceedings to obtain possession being ancillary to the main action and in no sense essential to it. Jantzen v. Emanuel German Baptist Church, 27 Okl. 473, Ann. Cas. 1912C, 659, 112 Pac. 1127. A statement of the value in the affidavit is only for the purpose of fixing the amount of the replevin and redelivery bonds. It is obvious that value is immaterial, except to the extent of conferring jurisdiction, where the action is to recover possession of specific property and no alternative judgment is asked; and the same is true, so far as the plaintiff's cause of action is concerned, where it is sought to recover possession or the value and the plaintiff obtains possession under his affidavit and bond retaining it until the trial, for the only judgment which could then be rendered in his favor would be one confirming his ownership and right to possession, because the statute makes no provision for a judgment for the value of the property in behalf of a plaintiff in possession.

It is true, a judgment against a plaintiff, or defendant either, in possession, should be for both the property and its value, the successful party electing within a certain time which he will take. But as a basis for such a judgment the statute provides that the court or jury, whichever tries the issue, shall find the value of the property, and in determining this question naturally arises: Since the market price of many classes of personal property fluctuates greatly and depreciation of others from various causes frequently occurs, which shall it be -- the value at the time of taking or at the time of trial? This inquiry was answered by the territorial Supreme Court in Gray v. Robinson, 4 Ariz. 24, 33 P. 712, in the following language:

"Appellants complain that the trial court assessed the value of the property at the time of the trial, and not at the time of taking. We find no error in the ruling of the court in this respect. Whatever may be the rule in the ordinary action of replevin, under statutes similar to our own, which provide for an alternative judgment for the return of the property or payment of its value, the rule generally applied is to assess the value of the property at the time of trial. Brewster v. Silliman, 38 N.Y. 423; Pope v. Jenkins, 30 Mo. 528; Lambert v. McFarland, 2 Nev. 58; Carson v. Applegarth, 6 Nev. 187."

When this decision was rendered, title 10 of the statutes of 1887 designated "Claim and Delivery," was in force, and it was...