Holmes v. . Godwin

Bynum, J. This is an action for ,the claim and delivery of personal property, instituted by the plaintiff’s intestate. 1. The defendant denied the plaintiff’s title and claimed the return of the corn which had been delivered to the intestate by the Sheriff. On the trial two issues were submitted to the .i>y- L. Was any rent due to the plaintiff: and 2. If not, what was the amount and value of the corn taken and. the damages for the detention. The jury found that no-rent was due, and that 125 bushels of corn were taken, worth $1.25; per bushel, at the time of the taking, and judgment was given for $136.25 and interest. On appeal by plaintiff to this Court, 69 N. C. Rep., 467, it was. held to be error to assess the value of the corn as of the time of the taking, instead of the time of the trial, it not appearing that the corn, had been destroyed so as to be incapable of being returned in specie, and for that reason a venire de novo was awarded. When, the case came on for trial the second time, the plaintiff claimed a new trial out and out, upon all the issues found, against him on the former trial, while the defend *309 ant claimed that the only error assigned being in the assessment of the value of the corn, the new trial must be confined to the .correction of that error, and that he could not be deprived of the benefit of the verdict in his favor, upon the other and material issues found in his favor. His Honor held with the defendant, and the plaintiff appealed, and it was thereupon agreed, and it so appears in the case, that the corn had been consumed, and its value was agreed upon as of the time of seizure, in order that a final judgment might be rendered here upon a review of his Honor’s opinion upon the case agreed. The first question presented by the record is, what is the legal effect of a judgment of venire ele novo upon the rights of the parties ? Upon that, there can be no doubt. The technical formula, “ venire facias de novo,” unexplained by any restrictions, has the meaning and legal effect of wiping out the former verdict and giving a new trial out and out, upon all the issues, and such was its effect in this case. That this Court may grant a partial and restricted new trial, in a proper case, is settled. Key v. Allen, 3 Murph. 553, was an action of detinue for negro slaves, where the jury found for the plaintiff and assessed damages for the detention of the slaves, but did not find their value. The defendant moved for a new trial, and a question arose, whether the Court should award a new trial in toto, or permit the verdict to stand and award a writ of enquiry to assess the value of the slaves. Upon the principles of convenience and the justice of the case, the Court awarded an enquiry, and the criterion for the exercise of the power is laid down to be this: If the jury omit to find a matter which goes to the very point of the issue, the new trial must be in toto, but where all the material issues are found correctly, and the error does not touch the merits, the Court may award an enquiry or partial new trial, to correct the error. The English cases are to the same effect, and Coke, 10 Eep. 118, goes the length of saying, that in such cases the Court ought, ex offieio, to award an inquest of damages and not a new trial upon the whole case. *310 4 Taunt. 556; Tidd’s Practice, 911; Boyd v. Brown, 17 Pick. 453; Hilliard on New Trials, chap. 17, sec. 29. The opinion of the Court, as declared in this case heretofore, 69 N. C. 467, does not militate with this view of the power of this Court. The power to award a partial new trial, or an enquiry of damages where they have been erroneously assessed, without disturbing the findings which dispose of the merits of the case, is both convenient and useful, however delicate and difficult, may be its application in particular cases. It. certainly should not be exercised]] except in a clear ease. Key v. Allen, is very like our case, but there the counsel raised the point and asked for a writ of enquiry, without disturbing the verdict which was not done when this case was here before. But another question is presented now. The venire de novo was granted because, under the instruction of the Court below, the jury assessed the value of the corn, as of the time of seizure, instead of the time of the trial, it not appearing that the corn had been destroyed. It now appears by the case agreed, that in point of fact, the corn had been destroyed and its value had been properly assessed by the jury. If this had appeared to the Court when the case was here before, the judgment of the Court below would have been affirmed. The only error alleged before, is now corrected by the case agreed and now submitted, for the more speedy determination of the case. Why send it back to be tried de novo, when it has been once fairly tried, and the record presents no error of law % The Court will not do a vain thing. Pee Cuexam. Judgment affirmed.