Gould v. Hayes

Andrews, C. J. The plaintiff had judgment in his favor, but he has appealed to this court on the ground that he was not awarded as large a sum in damages as he thinks he is entitled, upon the facts found, to recover. It is found that the plaintiff was not the owner of the goods replevied. He had an interest in them to the amount of $1,000—the amount which he had paid. This amount was the whole of “ the value of the goods replevied ” which he owned. There was no error in fixing this sum as the amount of his damages in this item. We think, however, that the plaintiff is entitled to have interest on that sum from the day of the replevin to the day of this judgment. The plaintiff having been deprived of his properly, the same rule of damages should be applied as in cases of trespass or trover. Parrott v. Housatonic R. Co., 47 Conn. 575; Bradley v. Reynolds, 61 id. 271, 286.- Of course the plaintiff is entitled to recover the costs in the replevin suit, and should have interest on that sum. The plaintiff also claimed to recover the value of the use of the property replevied, from the time of the replevin until the verdict in the replevin suit, and a reasonable amount for the cost of putting in new fixtures in place of those taken away by the replevin, to enable him to continue to carry on his business. The court overruled these claims, on the ground that they could not be recovered in this action against the surety in the bond, and that such damages should have been and were assessed in the replevin suit. If it is true that these damages have already been assessed in the replevin suit, then certainly the plaintiff has no claim to have them considered in this suit. But is this so ? It is insisted in behalf of the defendant in this suit that such assessment was there made because of the language of the verdict in that case. The verdict was this : “ The jury in the above case finds the issues for the defendant, Gardner F. Gould, and according to such finding renders a verdict for the return of the goods to the defendant, and assess his damages at $1.” [93] The said Gould, the defendant in said action of replevin, made answer denying all the allegations of the complaint. He did not file any notice of, or any pleading claiming, any damages for the taking of the said fixtures out of his saloon by means of said writ of replevin. The only issues, then, which were raised by the pleadings in that case were: (1) whether or not the then plaintiff was entitled to the immediate possession of the goods replevied; and (2) whether or not the then plaintiff was entitled to have damages for the detention of the said goods. These were the only issues upon which the jury could lawfully pass. There was no issue in that case upon the question whether or not the then defendant (now plaintiff) was entitled to have any damages, and so the jury could never have passed on that question. In the whole record of that replevin action the first place where anything appears in respect to damages to be recovered by the defendant therein, is in the verdict of the jury. The words of a verdict or of a judgment file do not constitute a judgment. These are nothing, except so far as they are the conclusions of the matter contained in the whole record. In Blackstone’s Comm. Yol. 3, p. 395, it is said: “ Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record.” And at page 396 it is added, that a judgment “ is the conclusion that naturally and regularly follows from the premises of law and fact.” This is the definition given in Jacob’s Law Diction ary. 2 Tidd’s Practice, at p. 841, says: “Judgment is the conclusion of law, upon the facts found or admitted by the parties.” It is “ an adjudication of the right of the parties in respect to the claim involved.” McNulty v. Hurd, 72 N. Y. 518, 521. What the judgment is in any case can be determined only by considering the whole record. If there are no premises ; if there are no matters contained in the record upon which a sentence or award can be pronounced; if there are no claims of the parties involved; it is certain there can be no judgment. Such is this case. It seems to us that this part of the verdict, as well as so much of the judgment file as is predicated upon it, have no validity in the law. We know from the [94] finding that these damages were not in fact assessed in the replevin suit, and we think there is nothing in the case from which the law will infer that they were so assessed. The trial court seems, also, to have ruled that the plaintiff could not in this action recover the damages which we are now considering, for the reason that such damages “should” have been assessed in the replevin suit. This rule implies that in any replevin suit, if the defendant claims damages on account of the replevying of the property, he mnst litigate that claim in the replevin suit, and that he may not litigate such a claim in a snit on the replevin bond. We are inclined to think that this rule cannot be sustained. Replevin in this State is indeed a statutory action. Sections 1323 to 1334, which give the remedy and prescribe its form, while authorizing a defendant to test his right to damages by appropriate pleadings in the replevin suit itself, also prescribe the form of the bond; and in such bond the principal and surety bind themselves, jointly and severally, to pay to the defendant therein among other things, “all damages sustained by the replevying ” of the goods named in the writ. This language is broad enough to include such damages as the plaintiff now claims, and there is nothing in these statutes which indicates that a defendant in such case who has suffered damages may not as well recover them in a suit on the bond as in the replevin suit. Washington Ice Co. v. Webster, 62 Me. 341. In the respect of pleading and trial, these damages are analogous to a counterclaim. A defendant who has a counterclaim is not compelled to set it up in the suit which is brought against him. He may do so if he desires, or he may bring an independent suit on it. We think the court erred in assessing the plaintiff’s damages, and that this case should be remanded for further proceedings according to this opinion. Error and case remanded. In this opinion the other judges concurred, except Hamersley and Hall, Js., who dissented, upon the ground that the plaintiff should have claimed and recovered his damages when defendant in the replevin suit.