Hogan v. Kellum

Wheeler, J. The process under which the Sheriff acted, was clearly void upon its face, consequently he could not justify under it, and there was no error in the judgment sustaining exceptions to the plea of justification. But the suit was for the recovery of the mule or its value; the petition alleging a conversion by the defendant, but praying judgment specially for the recovery of the possession of the property, or its value, in the alternative. The verdict was for the plaintiff for the highest estimated value of the property ; and the judgment 399 followed the verdict. Yet the evidence showed that after the alleged conversion, the mule came into the possession of the plaintiff, and was returned by him into the stable, where it seems he found it, upon the stable beeper becoming responsible to him, the plaintiff, for it. And it does not appear that Ms right was afterwards questioned, or his possession disturbed by the defendant, or any one else. The prayer of the petition was satisfied by the restoration of the property specifically ; and the evidence showed that the plaintff had resumed, and for aught that appears, retained the possession. The property having come into his possession, if he was after-wards deprived of it by reason of any wrongful act of the defendant, it devolved on him to show it. Upon the evidence the plaintiff clearly was, and the defendant as clearly was not chargeable with the possession of the property, after the former had resumed the possession. And under the alternative prayer of the petition, the verdict, giving the plaintiff the full value, notwithstanding he had recovered possession of the property, and asbed its value only in the event of not recovering the property specificallly, was clearly against law and the evidence as applied to the issues. In a word, the plaintiff having sued for the property, or its value, clearly was not entitled to recover both the property and its value. And it appearing in evidence that he had regained the property, he was not entitled to a verdict for its value. A new trial ought, therefore, to have been granted. If the suit had been for damages for the trespass, it would have presented a different case. But, though we have no distinctions for forms of action, the rule is as inflexible here as where those distinctions prevail, that the recovery must be according to the allegations and the proofs. The plaintiff must recover upon the case made by his petition; and cannot recover upon a different case. And though mere matter of form is not regarded, yet where the plaintiff by the prayer of the petition asks a particular recovery, or specific relief, which is consistent with the case stated, and there is no prayer for general relief, the special 400 prayer must be regarded as evidencing the nature and object of the suit, and in this respect as giving character to it; and the plaintiff will not, in general, be entitled to a different judgment from that which he has asked. For . the presumption is ‘that the plaintiff best knows the nature of his case, and the injury he has sustained ; and has asked such relief as he will be entitled to upon the facts, as they shall appear in evidence. The verdict cannot be supported as giving exemplary damages, for that is not the case made by the petition. Nor does the evidence present a case calling for such damages. The process, it is-true, was void on its face ; but there is no reason to believe the officer, in point of fact, knew it to be so. He doubtless acted in ignorance of his duty, honestly believing it was his duty to execute the process; and he does not appear to have done more than obedience to the mandate required. And though, in consequence of its invalidity, he cannot justify under it, he should not be held responsible for damages beyond what would be compensation to the plaintiff for the injury sustained by Imp. And he cannot be held responsible for such damages, otherwise than by a suit brought for that purpose, and having that object directly in view. The judgment is reversed and the cause remanded. Reversed and remanded.