It should not be forgotten that every presumption must be in favor of the correctness of the judgment of the court below. It is only “ for errors appearing on the record ” that the judgment of a district court, can be properly reversed. Code of Civil Procedure, Sec. 582. As to all questions of fact they must stand as found by the court below, there being no evidence before us, nor any foundation laid for their review. The only questions, therefore, which we can consider concern the judgment pronounced upon the facts as found.
The substance of the findings of fact is: First, That the defendant in error, who was plaintiff below, purchased the property in question at a public sale, and in good faith, but from one who, as it appears, was a stranger to the title, and that consequently he “ did not have the right of possession of the said goods and chattels at the commencement of the action.” This purchase was made “ on the sixth day of December, 1875,” and, although not so expressly found, still we think ,it reasonably inferable, before the executions hereafter referred to were levied upon the property. In other words that at the time the executions were levied the property had been purchased by the defendant in error, who then had it in his possession, under an honest claim of ownership. Second, That the plaintiff in error “ was by virtue of two executions to him directed as sheriff of Cuming county * * * entitled to the possession of said goods and chattels at the commence*198ment of this action. That said executions are unsatisfied; then there was due thereon the sum of four hundred and eighteen dollars and fifty-one cents, the amount of said executions and interest.to date of this judgment, together with costs,” &c. Third, “ That at the time the property was replevied it was of the value of one thousand and ten dollars, and that the value of the use of said chattels, during the time of the detention by the plaintiff, is five hundred and sixteen dollars, and that said goods and chattels have depreciated in value since the commencement of this action in the sum of two hundred and eighteen dollars.”
The record further shows that: “ The court finds, as question of law on the facts stated, that defendant (plaintiff in error) should have return of the property, or, on failure to return, damages to the amount of his special interest as sheriff, being the amount of the two executions, together with interest from the commencement of this action to date, and his costs expended.” And a judgment substantially conforming to these conclusions of law was thereupon rendered.
The main grounds of objection to this judgment are: First. That with the order for the return of the property there was not also included damages equal to the full value of its use, together with its depreciation in value while held by the defendant under the order of replevin. Second. That on the contingency of a non-return of the property the damages were limited to the amount called for by the two executions, whereas it is contended that the recovery ought to have been in a sum equal to its full cash value at the time it was replevied, together with the value of its use while the plaintiff in error was deprived of its possession.
Of the first of these objections it may be said, that if the plaintiff in error had been the real owner of the property the rule contended for would probably have *199been applicable, but not necessarily so, as to at least a portion of it.
In the case of Barney v. Douglass, 22 Wis., 464, it was held that the owner of a steam engine could not recover for its use during the time it was wrongfully detained without showing that he was in a situation to use it, and was prevented from doing so by such detention. And this we think is a reasonable rule. It does not appear whether this property was in use or not. In this case it is true that the court found from the evidence that the use of the property while held by the defendant in error was worth $519, and that during the same time it had depreciated in value $218, but whether under the evidence these items ought to have been allowed as damages we have no means of ascertaining. The inference to be drawn from the fact that the court below did not allow them is, that the evidence did not warrant it. As to the depreciation in the value of the articles, this may have been without the slightest fault on the part of the defendant in error, and under such circumstances as would make it most unjust to hold him accountable for it.
If the property of a judgment debtor, in his possession, or under his control, be seized by a sheriff in execution, and afterwards replevied from him by one having no interest therein,' the true measure of the officer’s damages is its value, together with interest from the time it was taken. Buck v. Remsen, 34 N. Y., 383. White v. Webb, 15 Conn., 302. Hall v. Jenness, et al., 6 Kan., 356. But in such case the defendant should not have damages for the detention, or use of the property, in addition to its value, for as is well said in Garrett v. Wood, 3 Kan., 231, “ this would be compensating him twice for the same injury.” But in this case, as before shown, the defendant in error, at the time of the levy, was in the peaceful possession of the property under a claim of ownership, and for aught that appears with no *200one, save the plaintiff in error with his executions, questioning the soundness of his title. It does not appear that the execution debtor himself laid any claim whatever to it. Under these circumstances the propriety of permitting the officer, in addition to the full amount due on the executions, to recover for the benefit of such debtor may well be doubted.
Section 191 of the code of civil procedure, concerning replevin, provides that: “ In all cases where the property has been delivered to' the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of property, or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant, for which, with costs of suit, the court shall render judgment for the defendant.”
In this case the court, by consent of the parties, took the place of the jury in the determination of questions of fact, and found, not that the defendant in the action “ had the right of property,” which we have reason to suspect might have been proper, but merely that he was “ entitled to the possession of said goods and chattels at the commencement of the action,” and omitting altogether to assess damages, except contingently upon a non-return of the property.
It was the duty of the court, upon finding that the defendant was entitled to the possession of the property, to have proceeded to assess adequate damages in his favor as the statute directs. The “ right of possession only ” carries with it the right to have nominal damages at least, independent of proof of any actual loss sustained. But an error of this sort can be corrected only by a motion for a new trial, and the preservation of all the testimony bearing on the question.
Section 7, of an act to amend the code of civil pro • *201cedure passed February 26, 1873, provides wbat sort of judgment shall be rendered on the several findings that may be had in replevin cases. It enacts that: “The judgment in the cases mentioned in sections one hundred and ninety, and one hundred and ninety-one, and in section one thousand and forty-one of said code, shall be for the return of the property, or the value thereof, in case a return cannot be had, or the value of the possession of the same, and for damages for withholding said property and costs of suit.” Gen. Stat., p. 713. Now while this judgment, in failing to award at least nominal damages with a return of the property, is not technically correct, still it follows strictly the findings of fact, and in all other respects conforms in all essential particulars to this section of the statute. We see nothing in this judgment prejudicial to the plaintiff in error, and therefore it must be affirmed.
JtTD&MENT AFFIRMED.