Stephens v. Strosnider

Mr. Justice Mercur delivered the opinion of the court, January 5th 1880. [235] This was an action of trespass for mesne profits by the defendants in error. On the 2d April 1872, they brought ejectment against the plaintiff in error, for the lands from which the profits are now claimed, and recovered a verdict therefor on the 24th October 1874. Judgment was entered thereon. After possession delivered to the defendant in error, on writ of habere facias possessionem, this action of trespass was brought. It is a well-settled rule of law that a verdict and judgment in ejectment are conclusive of the right of the plaintiff therein, to mesne profits from the time of the commencement of the suit until the judgment: Osbourn v. Osbourn, 11 S. & R. 55 ; Huston v. Wickersham, 2 W. & S. 308 ; Lane v. Harrold, 22 P. F. Smith 267; Kuhns et al. v. Bowman, 10 Norris 504. A careful examination of the evidence in the present case shows that no claim was made for any damages sustained prior to the commencement of the action of ejectment. No evidence was given tending to show that in the trial of the ejectment, the plaintiff in error accounted for or was charged with any rents and profits so as to bring this case within the equitable principle of Zimmerman v. Eshback, 3 Harris 417. On the contrary, it appears the defendants in error paid into court the full amount of the purchase-money which they had agreed to pay. It was paid in on the day the case was called for trial. Two days thereafter a verdict was rendered for the defendants in error “for the land described in the writ and six cents damages and costs.” The record given in evidence does not show that any condition was mentioned in the verdict or in the judgment entered thereon. It was essentially a general verdict. Its merits are not now before us for review. We cannot inquire whether that judgment was right or wrong. It has been acquiesced in until the time for review is past. On that trial all questions were pertinent in regard to the contract on which the recovery was sought, including all questions of payment, of tender, and of readiness and willingness to pay. In contemplation of law, they were then passed upon and decided.’ No evidence was given or offered to rebut that presumption. In view of the fact that in this case the defendants in error claimed damages only for the time the ejectment was pending, we think all the evidence relating to tender of payment on the contract was irrelevant, but its admission worked no injury to the plaintiff in error. The rights of the parties in contention here started with the issuing of the writ in ejectment. The judgment in that case established the right and fixed the time for which the defendants in error recovered damages here. The fact that one or two writs of error to the judgment in ejectment had been sued out by the plaintiff in error, and were still pending, created no bar against this recovery for damages. If they had been procured in time, it may have been a sufficient cause for [236] postponing the trial of this suit for damages until a decision was had on them ; but they would have been insufficient to defeat a recovery. In fact, however, the record shows they were sued out more than two years after the judgment. The right to have the judgment reviewed was then barred before the writs issued. ' One has since been non-prossed and the other quashed. Under all the facts we see no sufficient cause for disturbing the judgment. Judgment affirmed.