This is an action by the plaintiff, the owner and holder of a chattel mortgage covering certain personal property described in the complaint; against the sheriff o! Lincoln county, who had attached and taken possession of the property in an action brought by certain creditors of the mortgagors. The action was tried by the District Court of Lincoln county, a judgment recovered in favor of the plaintiff, and from that judgment an appeal is taken to this court.
The answer of the defendant, after alleging the taking of the goods as. sheriff of Lincoln county by virtue of an attachment, further avers, that the chattel mortgage, under which ti íe plaintiff claims is void as to creditors, and therefore the plaintiff is not entitled to the possession of the goods.
We see no reason for holding the chattel mortgage void as to creditors, and was that the only question presented on this appeal the judgment appealed from would be affirmed.
We will not, however, discuss this question at length. As for other reasons herein specified the judgment of the Court below must be reversed and a new trial ordered..
The plaintiff claims the possession of the property and damage for withholding possession from him. Our Code of Civil Procedure authorizes a recovery of damages by the prevailing party for the wrongful taking and detaining personal property. (See the case of Holt v. Van Epps, and authority there cited,) * decided by this court at the December term," 1875.)
It may be proper here to remark, owing to the confused manner in which the case at bar is in this court, we have some difficulty in determining precisely to what extent we may properly examine *68the papers and proceedings sent up by the District Court on this appeal. There is no certificate of the presiding Judge that the bill of exceptions contains all the evidence submitted in the court below, or so much thereof as is necessary to -be considered by this court in passing upon the questions presented by the bill of exceptions.
Upon page 11 of the bill of exceptions the following question is propounded to EL A. Jandt, a witness on the stand :
■ “State what damage, if any, you sustained by the detention of the property?”
The question seems to have been proper. The answer not responsive, and clearly obj'ectionable. We give the answer, which is as follows:
“ It required one of the firm to attend to the case, whose expenses were fourteen or fifteen dollars, and his loss of time to the firm was three days, valued at ten dollars per day, and the expenses of an attorney fourteen or fifteen dollars.”
. This evidence was especially objected to, the objection overruled, the evidence allowed to stand, and to this ruling an exception was taken.
The thirteenth finding of fact is in these words: “ The plaintiff has been damaged by reason of the loss of time and money expended in pursuit of the property, in the sum of one hundred dollars.”
In the sixth conclusion of law we find this language: “The plaintiff is entitled to judgment against defendant for the possession of the property by him taken and sold, and to one hundred dollars damages as compensation for time spent and money actually expended in the pursuit of said property.”
Now, while this court would not reverse the judgment of the court below, because of the insufficiency of the evidence to support the finding, without the certificate of the court below that the bill of exceptions contained all of the evidence, this court will review the obj( ctionable testimony bearing upon a single question in connection with the finding of fact and conclusion of law based upon that finding. (The finding' of the court below being properly here upon the record.) And when it clearly appears as in this case, that the evidence was improperly received and that the finding of *69fact was based upon that improper evidence, and that the conclusion of law upon that finding of fact was erroneous, this court will reverse. '
Applying the rule here indicated to the case at bar, and it clearly appears that the Distinct Court allowed the prevailing party thirty dollars for three,days’ time attending upon the case, and fourteen or fifteen dollars for his personal expenses during the same time, and fourteen dollars for expenses of attorney. There is also the testimony of the witness, G. C. Moody, which taken in connection with the findings of the court, shows unmistakably that one hundred dollars damages were awarded the prevailing party for the three days’ time and personal expenses in attendance upon the trial and for attorney or counsel fees.
On page 581, section 377, Revised Statutes, we find this provision: “The amount for attorney, solicitors and counsel in civil and criminal -actions must be left to the agreemént, express or implied of the parties. Section 378 of the same page, is as follows: “ When by the terms of any written instrument it appears that the debtor has made a written contract for the allowance oi attorney’s fees, the same must he allowed by the court in conformity to the instrument, and must form a part of the judgment and be incorporated therein.”
In this Territory the prevailing partv cannot recover attorney’s or counsel fees, unless there be an agreement or contract, express or implied, to pay the same. Does the Statute authorizing the recovery in an action for th'e wrongful taking, or detention of personal property of damages for the detention, change the rule ? We think not. The general rule as to damages in tort, actions or actions not founded upon contract, is the value of the property wrongfully taken at the time, or at any time before recovery. When the action is for the recovery of specific arl icles of personal property wrongfully taken in addition to a recovery of the property the prevailing party may recover damages for the wrongful detention. The reasons for this provision are apparent. ' It will often occur that the prevailing party has sustained damage in being deprived of the use of his property by the decrease in the value of the property while deprived of its possession, or the prop*70erty may bave been injured or damaged while the prevailing party was deprived of his right of possession. In these and like cases, damages for detention would be recoverable. We see no more propriety in allowing the prevailing party in this action, compensation for personal expenses, payment for his loss of time in connection with the prosecution of the action, and for attorney’s and counsel fees, than in an action on contract, an action for trespass, or any personal action. It could not have been' the intention of the Legislature in giving compensation to a prevailing party in the way of damages for the wrongful detention of his property to authorize the successful party to recover for personal expenses, loss of time, expenses of an attorney, as well as counsel and attorney’s fees. Should this court sanction or sustain the allowance of items of this’ kind, may we not reasonably expect to be called upon to sanction an allowance for injury to feelings, or for mental anxiety of the aggrieved party, by reason of the wrongful detention of his property.
Items of this class having been allowed to the prevailing party amounting in the aggregate to one hundred dollars, the judgment in the court below must be reversed, and a new trial ordered.' If this was the only error, possibly this court might reverse as4to the thirteenth finding of fact, and as to a part of the sixth conclusion of law, and affirm as to the rest of .the judgment.
In the action of Dole v. Burleigh, 1 Dak., 227, this court held, that the failure of the court below (where the action was tried by the Court) to find or pass upon all the material issues is error, for which this court will reverse judgment.
In the case of Holt v. Van Epps, 1 Dak., 206, this court held, in an action tried by jury, that a verdict which finds but a part of the issue and says nothing as to the rest, is insufficient, because the jury have not tried the whole issue, and for this reason the verdict will not sustain the judgment.
In the case at bar we have sent up to this court from the District Court, the statement of the presiding Judge, that for want of testimony, the District Court was unable to find and determine the rights of the parties, as to about six hundred dollars worth of the goods embraced in the issue in this action, and will therefore leave the defendant’to his remedy upon the bond.
*71If the court below, after having heard the testimony, could not find upon a material issue, the duty of this court is plain. The judgment must be reversed, the case remanded to the District Court for re-trial.
The parties to this action presented certain issues for trial which have only in part been tried. When' the issues there presented have been tried in the District Court, and final judgment pronounced thereon, then, in a case properly presented, this court will review the judgment of the District Court.
Judgment reversed with costs, and a new trial
Ordered.
1 Dak. Rep., 206.