Phelan v. Fancher

COLLIER, C. J. In Hardy, et al. v Gascoignes & Holly, [6 Porter’s Rep. 447,] it was determined, that although the act of 1828, “ The better to provide for the trial of the right of property, and other purposes,” requires the jury in all cases, where they shall find the property levied on subject to the execution, to find the value of each article separately. Yet as the claimant cannot be prejudiced, but rather benefited, by the omission of the jury to perform that duty, he cannot avail himself of it as a ground of error. [See also, Burnett, Wilroy & Co. v. Maxey, 9 Porter 410.] The issue submitted to the jury is an affirmation on one part, that the property is liable to be sold to satisfy the plaintiff’s execution, and on the other a denial of that averment. A verdict, finding this issue in favor of the plaintiff, is equivalent to an af-firmance in totidem verbis, of its truth in the precise terms in which it is stated; but if more was required, it may be found in the verdict as recorded. The jury do not stop with finding the issue in favor of the plaintiff, but the verdict goes farther, and asserts that the property levied on is liable to be sold in satisfaction of the execution. In Pickens v. Hayden & Meriam, [2 Stew’t, 10,] it was decided that a judgment by default for cost3 only, was irregular, and it is argued, that that case is conclusive against the judgment in the present, because it is there said that a judgment for costs only, unless it be by confession, is erroneous. The question was not whether, if the judgment had been confessed it should be reversed, but the court merely mentions a judgment in that form as excepted from the influence of its decision; and as it was not the matter of inquiry presented by the record, the remark in the opinion cannot be allowed to exclude all other exceptions. Judgments on verdict seem to us to occupy a position quite as favorable as any other; and.if the jury have ascertained the plaintiff’s right of recovery, it is competent for him to waive either expx-essly or impliedly, every thing accorded by the verdict, and take his judgment for the costs alone. By failing to cause a judgment to' [451] be rendered according .to the terms of the verdict, the plaintiff in execution may, in the form in which this case is presented, be understood as assenting to a relinquishment of every thing but his costs. The judgment, it is true, is in the singular number, viz: “ that the plaintiff recover of the claimant, &c.but this has been frequently held to be a mere clerical error, and the intendment is, that the recovery is against those who are parties to the issue. The objection that the judgment doe s not subject the property to the execution, or order a sale, is one of which the claimants can not avail themselves. If it be an error, it rather benefits than prejudices them, and the rule is, that a party can not avail himself of an error committed in his favor. We have not thought it necessary of our own motion, to say any thing of the writ of error being sued out by one of the claimants only. Our conclusion is, that although the proceedings evince a disregard of every thing like technicality, there is no error which will avail the claimants; and that the judgment must be affirmed.