Alling v. Shelton

Williams, Ch. J. The plaintiff claims, that the judgment below shall be reversed, because after issue joined, and tried by the jury, and found for him, the judgment was not peremptory, but respondeas ouster. That this judgment was not correct, according to the English practice, cannot be doubted. At an early period, this question seems to have been settled, as appears by a case — 440 — cited in Eichorn v. Lemaitre, 2 Wils. 367. and confirmed by uniform decisions ever since. Amcots v. Amcots, T. Raym. 118. S. C. 1 Sid. 252. S.C. 1 Vent. 22. Bonner v. Hall, 1 Ld. Raym. 338. S. C. Carth. 433. Crosse v. Bilson, 2 Ld. Raym. 1022. Medina v. Stoughton, 1 Ld. Raym. 593. Tompson v. Colier, Yelv. 112. 2 Wms. Saund. 211. n. 3. In our sister states, the authorities are not much less uniform. In Massachusetts, it is treated as settled law. Boston Glass Manufactory v. Langdon, 24 Pick. 49. And in New-Hampshire. Dodge v. Morse, 3 N. H. R. 232. Jewett v. Davis, 6 N. H. R. 518. In Vermont, the same final judgment is rendered, whether the issue is tried by the court or the jury. Peach v. Mills, 13 Verm. 501. So too in New-York, they have decided as in Massachusetts. Haight v. Holly, 3 Wend. 258. McCartee v. Chambers, 6 Wend. 649. And in Pennsylvania. Hollingsworth v. Duane, Wal. 154. McHaffy v. Shore, 2 Penn. 361. In Kentucky, the courts have come to the same result. Moore v. Morton, 1 Bibb, 234. And in Indiana, John v. Clayton, 1 Blackf. 54. But it is claimed, that such is not the practice in this state. That parties have sometimes acquiesced in such judgments in this state, is certainly true; but that this has been the uniform practice, is not true. It is certainly true, that if an issue in fact is tried by the court, and found against the defendant, the judgments have, for half a century, been respondeas ouster. Fitch v. Lothrop, 1 Root, 192. Nichols v. Heacock, 1 Root, 286. Thomas v. Dorchester, 2 Root, 124. But so far from impairing the common law rule as to the effect of a verdict upon such an issue, the judge, who assisted in these decisions, and imported them, puts it down among “points of law adjudged,” that when the court determine the plea to be insufficient, the judgment is, that the defendant shall answer over to the action; but if the issue is joined to the jury, and they find against the defendant, they assess damages for the plaintiff. 1 Root, 566. And such was the distinction taken by the superior court, in Bird v. Thompson, Litchfield county, 1801. MSS. of Judge Mitchell. And Judge Gould, though not satisfied with the distinction, speaks of its having been recognized by the supreme court of errors. Gould’s Pl. 301. And Judge Swift, who, in his System, has laid it down as law, that a finding upon such an issue, whether by the court or jury, — 441 — would be final; (2 Swift’s Syst. 204.) in his last work, speaking of our practice on trial by the court, (after laying down the common law rule.) says, this practice, i. e. of a respondeas ouster after issue to the court, unknown to the common law, has never received the sanction of the court of dernier resort. 1 Sw. Dig. 613. After the doubts suggested by these eminent judges, we ought to say, that the practice of not rendering a peremptory judgment, where the issue has been tried by the court, has been too long settled, and too often recognized by the superior court, to be disturbed at this late period. Out the other hand, we know of no such practice, much less of such decisions, as will justify us in departing from the common law rule upon verdicts of the jury. The reason of this rule is said to be, that the common law admits of but one issue to the jury. 1 Sw. Syst. 205. Another reason assigned is, that where a man pleads as true, a fact that he knows to be false, and a verdict be against him, it ought to be final; and every man must be presumed to know whether his plea be true or false. 2 Wils. 368. The true reason, we think, is, that pleas of this description are usually merely dilatory pleas, which it is the policy of the law to discourage: they are those required to be filed early, tried early, and not allowed to be amended and made conclusive, if the defendant will risk a trial by jury thereon. We think, therefore, the judgment must be reversed. After this, it is not necessary for the purposes of this case, to go further; but as one of the grounds of objection to the judgment, is one of great practical importance, and has once been passed upon, by this court, we avail ourselves of this opportunity, when the rights of no one will be injuriously affected, to revise that opinion. The error assigned to which we allude, is this. The plaintiff in error complains, that the jury gave costs only to the avowant, and against him; whereas they ought to have awarded to the avowant a return of the goods, or damages therefor; in support of which they cite the case of Loomis v. Tyler, 4 Day, 141. which fully justifies their claim. And although we have the utmost respect for the opinions of the court who decided that case, yet we cannot but think, that they gave more weight to the only case they cite in support of that decision, than from its merits it is entitled to; and as — 442 — the decision involves in it no practical results, which would render its stability important, we shall not shrink from reversing it. The plaintiff in error then seeks to reverse this judgment, because the jury did not award against him damages, as well as costs. Under these circumstances, we cannot but think the inquiry made by one of the court, on a former occasion, was peculiarly appropriate—“ What ground of complaint does this afford you?" The object of a writ of error, is, to redress an injury, which the complainant has sustained, by the mistake of the court. If false judgment be given, says an ancient writer, the party grieved shall have a writ of error. Fitz. N. B. 20. b. And Littleton says, “the writ lyeth when a man is grieved, by any error in the foundation, proceeding, judgment or execution of a court of record.” Co. Litt. 288. And the form of writ, is, that manifest error hath intervened, to the great damage of the plaintiff. Therefore, when trespass was brought against several, and one was acquitted, it was held, that he could not join with the others in a writ of error, for he cannot say it is to his damage. Cannon v. Abbot, 1 Lev. 210. Parker v. Lawrence, Hob. 70. In Tey’s case, 5 Co. 38. 40. where a writ of error was brought to reverse a fine, it was held, that “a recoveror should not bring a writ of error to defeat the record in which he himself doth recover; for the judgment in the, writ of error, is, to be restored to all that he hath lost by the fine or judgment, and not to avoid and lose that he hath gained by the fine or judgment. 7 Ed. 3. 25. b. A man shall not reverse a judgment for error, if he cannot show that the error is to his disadvantage.” To the same effect is the law laid down, by the venerable Fitz Herbert. N. B. 21. Soon after came Beecher’s case, 8 Co. 115. 117. where a writ of error was sustained in favour of a party who had withdrawn his action of trespass, and then sought to reverse the judgment against himself, because the court had not amerced him. The objection that the plaintiff in error could not complain of the judgment, not being injured, was urged. The court however resolved, that “it is true, that in process or delay, which is for the advantage of the party, he shall not assign it for error; but in the case at bar — 443 — the judgment is not perfect, for the amercement ought to be parcel of the judgment; and it is also for the King’s advantage.” In other reports of the same case, the only reason assigned is, that it is for the King’s benefit: it concerns the King's profit, and the public is concerned where the King is concerned. Cro. Jac. 211. Jenk. C. 283. (a) And in another case of the same character, the reason assigned is, that the judge of the piepowder court ought ex oficio to provide, that the King’s rights shall be preserved. Jenk. C. 211. The distinction taken seems to be where the error arises from some fault in the process or from the default of the court. 2 Wms. Saund. 47. n. 8. 1 Gallis, 28. 11 Mass. R. 383. But that an interlocutory erroneous judgment, which was for the advantage of the defendant, could not be taken advantage of by him, has been often determined. Medina v. Stoughton, 1 Ld. Raym. 549. 1 Salk. 211. 2 Ld. Raym. 970. Fitz. N. B. 20. Beecher’s case is the only authority cited by the court, in Loomis v. Tyler, as the foundation of their decision; and the reason given by Lord Coke, is the reason relied on, viz. that the judgment is not perfect; or, as is said by the able editor of Saunders, it is the default of the court. But can it be said, that any erroneous judgment is a perfect judgment? And is not every such judgment through the default of the court? A judgment upon a plea of abatement, is as much a part of the record, and as much the act of the court, as a judgment in chief; and if, as is intimated, the irregularity of the record should be corrected by the court, when shown to them, we do not see why the one should not be corrected in the same manner as the other. A celebrated chancery judge says, that when the error in judgment is in chief, in that case, for the sake of regularity, the error may be assigned. Kent v. Kent, Ca. temp. Hardw. 51. Or, as is said in another report of the same case, it is the fault of the court, and differs from the case of too long an essoin, which is prayed by the party. 2 Stra. 973. Here, however, the party cannot be charged with the fault; for it is not the party, but the court, which has controul of the trial. We believe, that the real ground of the decision in Beech — 444 — er’s case, as is intimated in King v. Lacey, 8 Conn. R. 500. and in Hughes v. Stickney, 13 Wend. 280. was, that the court felt bound to regard the King’s profit. Such a reason cannot commend the decision to the approbation of this court. Whether that case is now law in England, seems to be doubted, by the supreme court of New-York, in the case above cited; where Ch. J. Nelson says, a party may reverse his own judgment, token he is aggrieved by it, as he sometimes may be; and in England, at one time, he might do so, although not aggrieved, for a reason since exploded, that the King should lose his fine, and the reversal was for his benefit. It was expressly decided in William v. Gwyn, 2 Saund. 46. that a party shall not reverse his own judgment, unless he shows the error to his disadvantage. 13 Wend. 282. In that case, however, it may be said, that the court issued the grand cape, at the request of the party, and so the case falls within the distinction above taken. But in whatever light Beecher’s case may now be regarded in England, we have the opinion of one eminent judge, in a case very analogous to this, and which seems decisive of it, so far as an opinion of an eminent judge is to be regarded. In Gamon v. Jones, on a writ of replevin, Jones, the avowant, recovered his damages and costs. Gamon, the plaintiff, then brought his writ of error, “because there was no award in the judgment, that the defendant held the cattle irreplevisable,” The court held the judgment good, because in point of law, the return is irreplevisable, in all cases; and Buller, J. added: “Besides, it is an invariable rule, that if a judgment be more favourable for the plaintiff than he is entitled to, he cannot take advantage of it, because he is not injured by it.” 4 Term R. 510. And Judge Story, in McLemore v. Powell, 12 Wheat. 554. when speaking of the judge’s charge, says, the error, if any, was favourable to the defendant; and therefore, it can form no subject of complaint on his part. P. 556. That was not indeed the case of a judgment not perfect; but the principle seems analogous. And in looking over the recent reports from Illinois, this principle seems often recognized. Harmison v. Clark, 1 Scam. 131. Schlencker v. Risley, 3 Scam. 483. So in Indiana. John v. Clayton, 1 Blackf. 54. In a question of this kind, where the opinion of this court — 445 — has been once expressed, we should hesitate in overruling it, did we not think, not merely that it was incorrect, but that its effects would be injurious to the community. An error has manifestly intervened; but the party who suffers by it, acquiesces in it; and the opposite party, who has received no injury, but an advantage, complains of it. Upon what known principle can he be heard? He does not complain, that he suffers by it; but he is allowed to complain for the honour of the law, to redress an irregularity in a judgment to perfect the record. In this he can have no more interest than any other citizen; and if this was important to the public, it should be done by a public officer, at public expense, and not be left in the hands of private individuals, where it would be seldom used, except to gratify malice, or as an engine of oppression. We take, therefore, this occasion, when the rights of no individual will be affected, to say, that we cannot acquiesce in the decision in Loomis v. Tyler. And although we advise, that the judgment in this case be reversed, it is for the former cause only. In this opinion the other Judges concurred. Judgment reversed. Footnotes [(a)] The maxim cited in support of this position, is, “ Quo ditior rex est populus est tutior.”