Banning

This is an action to recover certain personal property, or its value. Judgment went for defendant, and plaintiff appeals from the judgment upon the judgment-roll and a bill of exceptions.

The court found that “the plaintiff is now in possession of said above-described property”; and the entire judgment is that “ the defendant, W. H. Marleau, do have and recover of and from Mary H. Banning, the plaintiff herein, the following personal property, viz: (describing it) and that said property be returned by plaintiff to defendant, or the value thereof, being the sum of six hundred dollars, in case a return cannot be had, be paid by plaintiff to defendant, together with costs and disbursements”; but there is no prayer, claim, or demand of any kind in the answer for a return of the property or its value; and, this being so, the judgment for its return cannot stand. (Code Civ. Proc., secs. 627, 667; Gould v. Scannell, 13 Cal. 431 ; Pico v. Pico, 56 Cal. 459 .) It cannot he reasonably expected that for the purposes of this case we should ignore the statute and overrule former decisions. We might, no doubt, remand the cause, with directions to change the judgment into one which would simply…