Loew v. Stocker

The opinion of the court was delivered, May 11th 1869, by Williams, J. This was an action of debt, against the surviving obligors, upon a joint and several bond given to indemnify the plaintiff below, for levying upon and selling certain personal property on an execution directed to him as sheriff of Carbon county. After proof by the subscribing witness of the execution of the bond by all the obligors, with the exception of Jonathan Brock, whose name was signed thereto and seal affixed by O. H. Wheeler, as his authorized attorney, in the presence of the subscribing witness, the plaintiff below offered the bond in evidence without any proof of Wheeler’s authority to sign it for Brock, the defendant. Loew, plaintiff in error, objected to its admission, but the court overruled the objection, and admitted it in evidence, to which he excepted, and assigns here its admission as error. The variance between the date of the bond, and its date as declared on, arose, doubtless, from a slip of the pleader, and would have been corrected if the attention of the court and opposite counsel had been called to it at the time of the offer. As the declaration might have been amended so as to avoid the variance, we should be disposed to treat it as amended here, if there were no other objection to the admission of the bond. But it was clearly inadmissible for another reason. As the action was against the survi [351] ving obligors, there could be no recovery without showing a joint liability of all, though one of them was not served with process: Schoneman v. Fegley, 7 Barr 433; Rowan v. Rowan, 5 Casey 181. It was, therefore, incumbent on the plaintiff to prove the execution of the bond by Brock before he was entitled to give it in evidence, and as it was signed for him by Wheeler, proof of his authority was indispensable. As there was no evidence of his authority, its execution by Brock was not proved, and the court erred in admitting it: 2 Greenl. Ev. § 159. And the error was not cured by any subsequent evidence, for the special verdict finds “ that the bond in suit was not executed by Jonathan Brock himself, and there is no evidence that O. H. Wheeler was authorized to sign his name.” But'it may have been cured by the amendment of the record, by striking therefrom the name of Brock at the time the judgment was entered, if the court had authority to permit the amendment. But the court had no such authority, unless it is conferred by the Act of 4th May 1852, as construed by the Act of 12th of April 1858. Under these acts the names of parties, whether plaintiffs or defendants, may be stricken out or added whenever it is necessary to a trial on the merits: Rangler v. Hummel, 1 Wright 130. But the amendment in this case was not made until long after the trial, and the finding of a special verdict by the jury, and when nothing remained to be done but for the court to draw the legal conclusion from the facts found by them and enter the proper judgment thereon. How then can it be said that the amendment was necessary to a trial on the merits ? And if it was not, the court had no authority to permit it. In the express language of the act it is only “ where, by reason of there being too many persons included as plaintiffs or defendants by mistake “ that the court is authorized to permit an amendment by striking out from the suit such persons as plaintiffs or defendants as will prevent the cause being tried on the merits.” We think that the amendment was not warranted by the letter or spirit of the act. It struck from the special verdict that part of the finding upon which the defendants rested their defence. If the amendment was improperly allowed, it is clear from the authorities already cited that the plaintiff below was not entitled to a judgment on the special verdict, for the reason that it did not show a joint liability on the part of all the obligors included in the action, even if it had been sufficient in other respects. But whether the amendment was rightly allowed or not, no judgment could be properly entered on the verdict, either in favor of the plaintiff or defendant. It is radically and incurably defective in not finding the facts essential to the plaintiff’s right of recovery; and the omission is apparent on the face of the verdict. The bond upon which the suit was brought, as we have already said, was given to indemnify Francis Stocker, the plaintiff below, for levy [352] ing upon and selling personal property upon an execution which had come into his hands as sheriff. The special verdict finds “ that an action was brought against Erancis Stocker, sheriff of Carbon county, and a recovery had against him which, with costs and interest, amounts to more than $3000,” the penalty of the bond. But it does not find that the action was brought, and the recovery had for levying upon and selling the goods mentioned and described in the bond, and for which it was given as indemnity, and we cannot intend or infer that such was the fact. It is well settled that a special verdict must find all the essential facts in the case, and that it cannot be aided by intendment or a reference to extrinsic facts appearing upon.the record: Wallingford v. Dunlap, 2 Harris 31; Sewall v. Glidden, 1 Ala. 52; Tunnell v. Watson, 2 Munf. 283; Lee v. Campbell, 4 Port. 198; Allen v. Folger, 6 Rich. 54; and what is not found by a special verdict will be taken not to exist: Thayer v. Society of United Brethren, 8 Harris 60; Berks Co. v. Jones, 9 Id. 416; and this is so although the circumstances stated may be sufficient to warrant an inference or presumption of the existence of the matter omitted: Jones v. State, 2 Swan. 399. The court is confined to the facts found in a special verdict, and cannot supply the want thereof by any argument or implication from what is expressly found: Crousillat v. Ball, 3 Yeates 386; Ingersoll v. Blanchard, 2 Id. 545. And if the special verdict is defective or uncertain, no judgment can be entered upon it, but it must be set aside, and a venire de novo awarded: Whitesides v. Russell, 8 W. & S. 47; Peterson v. United States, 2 Wash. C. C. R. 39; State v. Duncan, 2 McCord 129. These authorities abundantly show not only that the judgment must be reversed, but that the special verdict must be set aside and a new trial awarded. Judgment reversed, special verdict set aside, and a venire facias de novo awarded.