Eslava v. Dillihunt

PECK, C. J. — The action in this case was for the recovery of personal property in specie, under chapter 5, Revised Code, p. 520. The appellant, the plaintiff in the court below, gave the bond named in § 2593 of said Code, and the sheriff was required to take the property into his possession, unless the . defendant should give bond, payable to the plaintiff, with sufficient surety, in double the amount of the value of the property, with condition that if he was east in the suit he •would, within thirty days thereafter, deliver the property to the plaintiff and pay all costs and damages which might accrue from the detention thereof. The defendant having neglected, for five days, to give such bond, the property was delivered to the plaintiff, on his giving the bond mentioned in § 2595 of said Code, payable to the defendant, with condition to deliver the property to the defendant, within thirty days, in case he should fail in the suit, &e. The property sued for consisted of some ninety-two articles of household furniture, valued at $330, a very large majority of said articles being of inconsiderable value. Section 2595 of said Code is in the following words, to-wit: “ Upon the trial of any cause for the recovery of [702] property in specie, the jury must, if they find for the plaintiff, if practicable, assess the value of each article of the property separately, and also assess damages for its detention ; if they find for the defendant, they must, in like manner, assess its value ; and, if in the possession of the plaintiff, assess the damages for its detention. Judgment for either party must be for the property sued for, or its alternate value, with damages for its detention to the time of 'trial.” On the trial the jury found' for the defendant, and assessed the value of said articles in gross, at $330.45. Neither the plaintiff or defendant objected to said verdict, nor when the said verdict was returned did either party make any motion to have the jury instructed or required to find the value of said articles separately, and judgment, without objection, was rendered for the defendant, that he recover said articles or their alternate value, &c. The plaintiff has appealed to this court, and seeks to reverse said judgment, because the value of said articles was not separately assessed by the jury. We think the judgment should be affirmed, for two reasons : 1st. Neither party having taken any exception to said verdict when rendered, but quietly acquiescing in the same, should be held to have waived, as they might lawfully do, the right to have the separate value of each article assessed by the jury. Requiring the separate value of each article to be assessed in such cases, is intended mainly for the benefit of the losing party, and if he does not object to an assessment of the value of the articles in gross, he should be held to acquiesce in such assessment, and not be permitted to complain for the first time in this court. 2d. Where it does not appear to the contrary, it should be presumed, in favor of the proceedings in the court below, that no evidence of the separate value of the articles was made on the trial, and, consequently, it was impracticable for the jury to find a separate value for each article, and, therefore, correctly assessed a gross value, as they [703] might lawfully do; for the statute says the jury must, if practicable, assess the value of each article separately. If a separate value was not proved, then it was not practicable for the jury to assess a separate value, and -a general verdict was sufficient. Eor these reasons, we affirm the judgment of the court below, at appellant’s cost.