The opinion of the court was delivered by
Johnston, J.:Mary L. Thompson brought an action of replevin against the Chase County National Bank and another to recover the possession of nine horses and one cow, of the alleged value of $880. The jury returned a verdict finding that she was the owner and entitled to the immediate possession of the property, stating the value of each animal, and that all were of the aggregate value of $562.50. They also assessed damages for the unlawful detention in the amount of $40. Upon this verdict, judgment was rendered in the alternative for the recovery of the possession of the animals, or in ease a return could not be had, for the value thereof, and for $40 as damages for the unlawful detention of the same. It is now contended by the plaintiffs in error that, because there was no demand in the petition in the action for the value of the property, the giving of judgment in the alternative was error. It was an ordinary action of replevin, and the petition was in the usual form. The prayer of the petition demanded judgment for the possession of the property, for damages for detention, and the costs of the action. The statute specifies the form of the judgment which must be entered in an action for replevin, and requires that it shall be entered in the alternative in such a case as this. A failure to have rendered the judgment in the alternative would have been material error. (Hall v. Jenness, 6 Kas. 356; Ward v. Masterson, 10 id. 77; Babb v. Aldrich, 45 id. 218.)
Another contention is, that the plaintiff below was not entitled to recover damages for the detention of the property. It is said that if, in lieu of surrendering the property, the defendants pay the value thereof, they should not be compelled *309to pay any damages beyond what is authorized in actions of trover, to wit, interest. The statute imposes no such limitations, and specifically authorizes the judgment that was given. (Civil Code, § 185.) It expressly authorizes the allowance of damages for the wrongful detention when a judgment in the alternative is given, and manifestly proceeds upon the theory that the owner is entitled to the possession and • use of the property withheld from him, and he ought to recover the value of such use as damages for its detention. (Batchelor v. Walburn, 23 Has. 733; Griffiths v.Wheeler, 31 id. 17; Clouston v. Gray, 48 id. 31; Yandle v. Kingsbury, 17 id. 195; Kennett v. Fickel, 41 id. 211.) The judgment of the district court will be affirmed.
All the Justices concurring.