Gibson, C.
Action against defendant Martinez as constable, and the sureties on his official bond, to recover, as damages, the sum of $262.84, the value of 160 sacks of wheat, alleged to have been wrongfully taken and converted by Martinez, as constable, under a writ of attachment issued in an action prosecuted in a court of a justice of the peace, and, also, the further sum of $100, alleged to have been expended for an attorney’s fee in the pursuit of the wheat. Trial was had before the court without a jury, and resulted in certain findings, — among others, that the wheat was taken as alleged, and was of the value of $256.08, and that plaintiff had not properly expended the sum demanded by him for an attorney’s fee. Judgment was entered in accordance with the findings. Defendants appeal from the judgment, and from an order denying their motion for a new trial. There is no brief for the respondent on file.
The first error appellants assign is, that the court erred in overruling their demurrer to the complaint, in which they attacked the jurisdiction of the court over the subject-matter of the action, on the ground that the value of the property sought to be recovered was below the jurisdictional sum of three hundred dollars, and could not be brought up to or above the latter sum -by tacking on a demand for an attorney’s fee. The complaint plainly discloses that the object of the action is to recover damages for the wrongful conversion of the wheat, which damages are alleged to consist of two elements, [461]*461namely, the value of the wheat and money expended in pursuit of it. In order to give the superior court jurisdiction of the subject-matter of an action of this kind for unliquidated damages, the demand, exclusive of interest, that may be claimed under section 3336 of the Civil Code must amount to at least three hundred dollars. (Const. Cal., art. 6, sec. 5; Code Civ. Proc., sec. 76, subd. 3.)
It is therefore true, as urged by appellants, that the amount claimed here, to the extent of the value of the "wheat alone, would not give the superior court jurisdiction, but to this is added the sum of one hundred dollars expended in pursuit of the property, as an additional cause of damages, thereby making the whole sum claimed in the ad damnum clause of the complaint amount to $362.84; and that clause, according to the settled rule in this state, constitutes the test of jurisdiction. (Dashiell v. Slingerland, 60 Cal. 653; Bailey v. Sloan, 65 Cal. 387; Lord v. Goldberg, 81 Cal. 599.)
It may be said that the true amount of the demand, exclusive of interest, if any, may sometimes be increased in a complaint for the purpose of bringing the case within the jurisdiction of the superior court. While this may occur, yet the inevitable consequence of not being able to recover the jurisdictional sum, so as to carry costs under section 1022 of the Code of Civil Procedure, will, we apprehend, be sufficient to prevent such a practice from becoming common; and the saving of costs will compensate the defendants in the rare instances in which they may be first brought into the superior instead of the justice’s court.
Both of the causes of detriment complained of here are within the measure of damages applicable to cases of this kind, which is provided for in section 3336 of the Civil Code, as follows: “The detriment caused by the wrongful conversion of personal property is presumed to be,—1. The value of the property at the time of the con[462]*462version, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and 2. A fair compensation for the time and money properly expended in pursuit of the property.”
In McDonald v. McConkey, 57 Cal. 325, which was an action like the present one, for damages for the wrongful conversion of personal property, it is strongly intimated that money paid out for attorney’s fees in pursuit of the property is not within the rule of damages declared in the above section. This is the language there used by the court: “ The allegation of damages in each count of the complaint, with the exception of the words ‘ attorney’s fees,’ is in the words of section 3336 of the Civil Code. The words ‘ attorney’s fees ’ may be rejected as surplusage. The evidence is not before us, and it cannot he assumed that the jury included attorney’s fees in their verdict.” Whether the intimation in that case is well founded or not, we are not called upon to determine, as the same reasoning applied therein will dispose of the point under consideration here.
The allegation of the complaint here in respect to the expenditure of an attorney’s fee is as follows: “ That plaintiff has properly and necessarily expended the sum of one hundred ($100) dollars, gold coin, for attorney’s fee in pursuit of said property.” Now, by treating the words “ for attorney’s fee ” as surplusage, we have a sufficient allegation of the fact that plaintiff necessarily and' properly expended one hundred dollars in pursuit of the property, and within the proper measure of damages, which, in addition to the amount of the other damages claimed, brings the whole amount demanded within the sum of which the superior court has jurisdiction.
A similar course was pursued in Howard v. Valentine, 20 Cal. 282. That was an action first brought in the jus[463]*463tice’s court under the forcible entry and detainer act for the restitution of certain premises, and five hundred dollars back rent for the same. The sum demanded was in excess of that which a justice’s court could render judgment for in any action upon contracts, or for torts, except for damages for the unlawful detention of real propertjn The complaint was demurred to for want of jurisdiction, and overruled. The county court, to which the case was subsequently appealed, sustained the objection to the jurisdiction, and dismissed the action. Upon an appeal from the latter court to this court, it was ruled that the action of the county court was erroneous, because the objection only went to a part of the relief sought, and, although under the act mentioned rents that had accrued prior to the unlawful detention of the property were not recoverable in an action under said act, but only such rents, regardless of the amount, that had accrued during the unlawful detention, the court should either have excluded the objectionable matter and directed an amendment, or disregarded it. We are therefore of the opinion that the same objection raised by the demurrer in the present case was properly overruled.
The appellants’ remaining contention is, that the property attached had not been delivered to the respondent by the defendant in the attachment suit when the appellant Martinez levied upon it by virtue of a writ of attachment regularly issued in that suit. The Civil Code provides: “ The title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not.” (Sec. 1140.) The respondent, it appears, on October 4, 1886, purchased of Hartman, the defendant in the attachment suit, according to samples, 250 sacks of wheat at the rate of $1.07 per cental, taking therefor a bill of sale, and paid $250 as part payment, and agreed to pay the remainder when Hartman should notify him of the [464]
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Gibson, C.
Action against defendant Martinez as constable, and the sureties on his official bond, to recover, as damages, the sum of $262.84, the value of 160 sacks of wheat, alleged to have been wrongfully taken and converted by Martinez, as constable, under a writ of attachment issued in an action prosecuted in a court of a justice of the peace, and, also, the further sum of $100, alleged to have been expended for an attorney’s fee in the pursuit of the wheat. Trial was had before the court without a jury, and resulted in certain findings, — among others, that the wheat was taken as alleged, and was of the value of $256.08, and that plaintiff had not properly expended the sum demanded by him for an attorney’s fee. Judgment was entered in accordance with the findings. Defendants appeal from the judgment, and from an order denying their motion for a new trial. There is no brief for the respondent on file.
The first error appellants assign is, that the court erred in overruling their demurrer to the complaint, in which they attacked the jurisdiction of the court over the subject-matter of the action, on the ground that the value of the property sought to be recovered was below the jurisdictional sum of three hundred dollars, and could not be brought up to or above the latter sum -by tacking on a demand for an attorney’s fee. The complaint plainly discloses that the object of the action is to recover damages for the wrongful conversion of the wheat, which damages are alleged to consist of two elements, [461]*461namely, the value of the wheat and money expended in pursuit of it. In order to give the superior court jurisdiction of the subject-matter of an action of this kind for unliquidated damages, the demand, exclusive of interest, that may be claimed under section 3336 of the Civil Code must amount to at least three hundred dollars. (Const. Cal., art. 6, sec. 5; Code Civ. Proc., sec. 76, subd. 3.)
It is therefore true, as urged by appellants, that the amount claimed here, to the extent of the value of the "wheat alone, would not give the superior court jurisdiction, but to this is added the sum of one hundred dollars expended in pursuit of the property, as an additional cause of damages, thereby making the whole sum claimed in the ad damnum clause of the complaint amount to $362.84; and that clause, according to the settled rule in this state, constitutes the test of jurisdiction. (Dashiell v. Slingerland, 60 Cal. 653; Bailey v. Sloan, 65 Cal. 387; Lord v. Goldberg, 81 Cal. 599.)
It may be said that the true amount of the demand, exclusive of interest, if any, may sometimes be increased in a complaint for the purpose of bringing the case within the jurisdiction of the superior court. While this may occur, yet the inevitable consequence of not being able to recover the jurisdictional sum, so as to carry costs under section 1022 of the Code of Civil Procedure, will, we apprehend, be sufficient to prevent such a practice from becoming common; and the saving of costs will compensate the defendants in the rare instances in which they may be first brought into the superior instead of the justice’s court.
Both of the causes of detriment complained of here are within the measure of damages applicable to cases of this kind, which is provided for in section 3336 of the Civil Code, as follows: “The detriment caused by the wrongful conversion of personal property is presumed to be,—1. The value of the property at the time of the con[462]*462version, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and 2. A fair compensation for the time and money properly expended in pursuit of the property.”
In McDonald v. McConkey, 57 Cal. 325, which was an action like the present one, for damages for the wrongful conversion of personal property, it is strongly intimated that money paid out for attorney’s fees in pursuit of the property is not within the rule of damages declared in the above section. This is the language there used by the court: “ The allegation of damages in each count of the complaint, with the exception of the words ‘ attorney’s fees,’ is in the words of section 3336 of the Civil Code. The words ‘ attorney’s fees ’ may be rejected as surplusage. The evidence is not before us, and it cannot he assumed that the jury included attorney’s fees in their verdict.” Whether the intimation in that case is well founded or not, we are not called upon to determine, as the same reasoning applied therein will dispose of the point under consideration here.
The allegation of the complaint here in respect to the expenditure of an attorney’s fee is as follows: “ That plaintiff has properly and necessarily expended the sum of one hundred ($100) dollars, gold coin, for attorney’s fee in pursuit of said property.” Now, by treating the words “ for attorney’s fee ” as surplusage, we have a sufficient allegation of the fact that plaintiff necessarily and' properly expended one hundred dollars in pursuit of the property, and within the proper measure of damages, which, in addition to the amount of the other damages claimed, brings the whole amount demanded within the sum of which the superior court has jurisdiction.
A similar course was pursued in Howard v. Valentine, 20 Cal. 282. That was an action first brought in the jus[463]*463tice’s court under the forcible entry and detainer act for the restitution of certain premises, and five hundred dollars back rent for the same. The sum demanded was in excess of that which a justice’s court could render judgment for in any action upon contracts, or for torts, except for damages for the unlawful detention of real propertjn The complaint was demurred to for want of jurisdiction, and overruled. The county court, to which the case was subsequently appealed, sustained the objection to the jurisdiction, and dismissed the action. Upon an appeal from the latter court to this court, it was ruled that the action of the county court was erroneous, because the objection only went to a part of the relief sought, and, although under the act mentioned rents that had accrued prior to the unlawful detention of the property were not recoverable in an action under said act, but only such rents, regardless of the amount, that had accrued during the unlawful detention, the court should either have excluded the objectionable matter and directed an amendment, or disregarded it. We are therefore of the opinion that the same objection raised by the demurrer in the present case was properly overruled.
The appellants’ remaining contention is, that the property attached had not been delivered to the respondent by the defendant in the attachment suit when the appellant Martinez levied upon it by virtue of a writ of attachment regularly issued in that suit. The Civil Code provides: “ The title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not.” (Sec. 1140.) The respondent, it appears, on October 4, 1886, purchased of Hartman, the defendant in the attachment suit, according to samples, 250 sacks of wheat at the rate of $1.07 per cental, taking therefor a bill of sale, and paid $250 as part payment, and agreed to pay the remainder when Hartman should notify him of the [464]*464exact weight of the wheat. A portion of the wheat at the time of the sale was in a warehouse, for which certificates of weight had been issued to Hartman, who at the time of the sale transferred them to the respondent, and at the same time agreed to deliver the remainder of the wheat at the same warehouse for the respondent. On the 9ill of the same month, he delivered the remainder of the wheat at the warehouse, and had it weighed and certificates of such weight issued to him in the name of Hartman & Co. Just after the last portion of this lot of wheat had been put in the warehouse, the appellant Martinez appeared, and asked the warehouseman in whose name it was stored, and was informed that it was in the name of Hartman & Co. He thereupon levied an attachment upon 160 sacks of the wheat, and subsequently sold them. Before making the levy, he was told by the teamster who hauled the wheat to the warehouse that it belonged to the respondent here. Hartman went, immediately after the levy was made, to the respondent, and transferred the certificates of weight to him, in accordance with the terms of the previous sale. Hartman testified that, in addition to the $250 received at the time of the sale, he got, as part payment of the wheat, thirty-four tons of hay and some lumber.
There does not seem to be any material conflict in the testimony from which the foregoing facts are deduced. It is not shown, and neither can it be inferred from the evidence, that the respondent made any effort to defraud any of Hartman's creditors, or had any knowledge of his indebtedness to others, at the time of the sale. We think it evident, from the foregoing state of facts, that the parties agreed upon and intended a present transfer of the wheat at the time of the sale, and that the same, which consisted of -250 sacks, was at the same time identified. The court below was therefore justified in finding that the title to the wheat had passed to the respondent prior to the attachment levy.
[465]*465The judgment and order appealed from should therefore be affirmed.
Vancliee, C., and Foote, C., concurred.
The Court. —For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Paterson, J., dissented.