The facts appear in the opinion. *Page 157 This is an appeal from an order overruling a motion for a new trial. The action was in the ordinary form of claim and delivery under the statute for the recovery of the possession of a certain number of cattle and horses alleged to be withheld and detained by the defendants.
The answer justifies the taking by the defendants, one of whom is the sheriff of Lyon county, under an execution against J. H. Gardner, a son of the plaintiff, as his property, and a subsequent sale in the month of January, 1893, two months before this suit was commenced. The proofs showed without question that the cattle were sold as alleged in the answer. Upon these facts the question arises, has the plaintiff established a cause of action in claim and delivery against the defendants? In order to have established his *Page 168 case, he should have shown a possession of the demanded property in the defendants; as he had alleged in his complaint. The detention is the gist of the action, and recovery of the possession of the property its primary object. The statute has provided all the appliances to this end, and the allegations of the complaint are consistent with this view. The proofs show a fatal variance, and the requirement of the statute that the complaint shall contain a logical statement of the facts constituting the cause of action has been disregarded.
In his recent work on Replevin, Mr. Cobbey states the law as follows: "To enable plaintiff to maintain an action for the recovery of specific personal property, the defendant must be in possession thereof at the commencement of the action. When the petitioner alleges that the defendant is in possession, and the proof shows the contrary, there is such a variance between the allegations and the proof as disables plaintiff from recovery." (Sec. 61.)
The New York cases have adopted a different view (Nichols v. Michael, 23 N. Y. 264), but the great weight of authority is the other way. (Coffin v. Gephart, 18 Iowa, 257;Riciotto v. Clement, 94 Cal. 105,29 Pac. 414; Houghton v. Newberry, 69 N. C. 456;Hall v. White, 106 Mass. 599;Aber v. Bratton, 60 Mich. 357,27 N. W. 564; Griffin v. Lancaster, 59 Miss. 340;Moses v. Morris, 20 Kan. 208;Daris v. Randolph, 3 Mo. App. 454;Feder v. Abrahams, 28 Mo. App. 454;Willis v. De Witt, (S. D.) 52 N. W. 1090.)
We should have hesitated before reversing this case upon this point if substantial justice had been done by the verdict. But the measure of damages established at the trial was wrong, and for this reason, if for no other, we are constrained to remand it. The value of cattle the subject of the litigation — had fluctuated during the pendency of the suit, and the jury were instructed that the plaintiff could recover the highest value between the taking and the trial.
In O'Meara v. Mining Co., 2 Nev. 112, this court decided that in this class of cases, when the plaintiff asks for the return of the specific property, or its value, if a return cannot be had, the value of the property at the time of trial is the only complete indemnity. To the same effect were the *Page 169 rulings in the subsequent cases of Bercich v.Marye, 9 Nev. 312, and Buckley v. Buckley,12 Nev. 423.
In Boylan v. Huguet, 8 Nev. 345, we held that the value of the property at the time of the conversion, with interest from that date, together with such special damages as the plaintiff may be entitled to, was the rule in trover. New decisions show that the purpose of the court has been to fully indemnify the injured party without punishing the wrongdoer.
A motion was made in this court before its submission upon the merits for the purpose of correcting the record by striking out one of the instructions given to the jury at the trial upon the ground that it had not in fact been given at the trial. We denied the motion upon the ground that the statutes invest only the judges of the district court with authority to settle statements upon motion for new trial. In this present case the statement was so settled, as appears by the certificate of the judge. This court has no power to alter or amend it. It is the record upon which we are to act.
Judgment reversed, and cause remanded.