State ex rel. Vanderburg v. Bidwell

JOHNSON, J. Relator filed his petition in the circuit court of Carroll county for a writ of mandamus to compel defendant Bidwell, a justice of the peace of Egypt township, Carroll county,'to- accept and treat a verdict returned hy a jury in a cause tried before said defendant wherein relator was defendant, as a verdict in favor of relator and to enter judgment on his docket for relator and to compel the defendant Lovell, the constable of said township to receive and levy an execution when issued on such judgment. The facts disclosed by the alternative writ issued by the court and defendants’ return thereto are as follows: On September 2, 1907, William M. Fulcher brought suit against Alfred Vanderburg, the relator, before defendant Bidwell to recover the purchase price of a hog which he alleged in his statement he sold to Vanderburg for seventeen dollars. No counterclaim or set-off was interposed by defendant at the trial which occurred September 26, 19Ó7. The trial was to a jury and the following verdict- was returned: “We, the jury, find our verdict for plaintiff, J. W. Bowles, Foreman.” This verdict was received by the justice, entered on his docket as the verdict of the jury and the jury was discharged. The justice then, over the objection of relator, entered judgment on his docket for Fulcher in the sum of seventeen dollars, and on October 21, 1907, issued an execution on said judgment and delivered it to the defendant constable who was proceeding to execute the writ when the present suit was begun. It is alleged in the return: “The said jury aimed and intended thereby [506] to find for the plaintiff therein and against the defendant in the sum of $17, that said verdict was publicly delivered to and received by the defendant Bidwell; that defendant Bidwell understood and interpreted said verdict as finding for the plaintiff therein and against the defendant therein in the sum of $17, and thereupon discharged the jury finally. Defendants further state that the said jury did not refuse to find any sum in favor of the plaintiff therein; but on the contrary, they duly agreed upon a verdict in favor of the plaintiff therein and against the. defendant therein, in the sum of $17; that at the time of delivering said verdict to the justice, said jury, and each and every member thereof understood and regarded their verdict, in the form aforesaid, as finding for the plaintiff therein and against the defendant therein in the sum of $17, and they continued to so regard it up to and after their discharge, that the failure of said jury to insert the said amount in their said written verdict was due solely to a lack of information on their part that such was necessary and proper.” A motion for judgment on the pleadings was filed by relator and overruled by the court after which the following judgment was entered: “Come the respective parties by their attorneys and this cause coming on for hearing before the court upon plaintiff’s alternative writ of mandamus issued by the judge of this court in vacation, and upon defendant’s return to said alternative writ, and upon the evidence adduced both by relator and by the defendants, the court doth order, adjudge and decree, that the peremptory writ of mandamus prayed for by relator against the defendants, M. C. Bidwell, and J. T. Lovell, be denied, except as hereinafter directed. It is ordered by the court that said J. T. Lovell, constable, is hereby commanded to return the execution issued by M. C. Bidwell, in case of William Fulcher, plaintiff, against Alfred Vanderburg, for [507] the sum of $17 and costs on a purported judgment of M. C. Bidwell, justice of the peace, in favor of William Fulcher and against Alfred Yanderhairg, on the 26th day of September, 1907, without further executing the same; and the said M. C. Bidwell is here ordered and commanded to refrain from issuing any further execution on said purported judgment and upon receipt of this mandate is commanded to set aside his docket entries of judgment in said cause and disregard the alleged verdict of the jury upon which said judgment Was founded and then redocket the said cause for trial and set the cause for trial and give ten days’ notice in writing to each party of the day when said cause will be tried before him and then proceed to the trial of said cause. It is adjudged that the costs of this proceeding in mandamus shall go in the original case.” After his motions for a new trial and in arrest of judgment were filed and overruled by the court, the relator brought the case here by appeal. We shall treat as admitted the fact alleged in the return that the real purpose of the jury was to find for plaintiff in the sum of seventeen dollars. But since the verdict on its face expresses no such purpose, we do not think any effect should be given this fact in the present state of the record. Defendants argue that the rules giving to a court, of record the power to amend a verdict to express the manifest intention of the jury (Acton v. Dooley, 16 Mo. App. 441; Hary v. Speer, 120 Mo. App. 556) may likewise be exercised by inferior statutory courts in the furtherance of justice. It sufi ficiently answers this argument to say that defendant justice did not attempt to amend the verdict and, therefore, the question of his right to amend is not before us. He received and recorded the verdict as the jury returned it and then, guided by his own interpretation of it, entered judgment for the plaintiff in the sum demanded in the statement. In such state of the record, the verdict should be accepted as conclusively express [508] ing the real purpose of the jury and since it does not assess the amount of the recovery, we must assume that the jury did not intend to find for the plaintiff in any sum. These considerations impel us to hold that the attempted assessment of an amount in the judgment entered by the justice was a clear invasion of the province of the jury and as such, was wholly nugatory. The learned trial judge evidently so held, but we think he fell into error in treating the verdict as void, as he must have done in ordering the justice to redocket and retry the case as though no verdict had been returned. We concede for argument that in an action on contract for the recovery of money only, tried in the circuit court, a verdict for the plaintiff which fails to state the amount of the recovery is insufficient to support a judgment and should be treated as a nullity. In such cases, the amount of the recovery is one of the vital issues and the verdict must respond to all of the issues submitted to the "jury. [Ryors v. Prior, 31 Mo. App. 555.] But a different rule.has been prescribed by statute for cases tried in justice courts. Section 4008, Revised Statutes 1899, provides: “Judgment for the defendant, with costs, shall be rendered whenever a trial or hearing has beén had and no sum shall be found by the verdict of the jury or by the decision of the justice in favor of the plaintiff.” This statute treats a verdict, deficient in the respect under consideration, as m> verdict for the plaintiff, doubtless because of its failure to pronounce on one of the essential issues of the case, but in effect as a finding and verdict for the defendant. We perceive no reason in law for refusing to give effect to this statute. It construed the verdict in the present case and, observing its requirement, the defendant justice should have entered judgment for the reiator. The failure of the justice to enter the right judgment on his docket did not deprive the verdict of any of its force. The duty of a justice to enter judgment on a verdict is [509] purely ministerial. From the moment the verdict is entered on the justice docket, it possesses all the force and effect of a formal judgment. [Morse v. Brownfield, 27 Mo. 224; Hazeltine v. Reusch, 51 Mo. 50; Giett v. McGannon, 74 Mo. App. 209.] Under this rule, the verdict when entered by defendant justice, ipso facto, became a judgment in favor of the relator by virtue of the provisions of section 4008. A right to appeal from that judgment inured to the plaintiff Fulcher. As that right was not exercised in the time prescribed by law, it follows that the judgment now is final. Relator is entitled to the performance by the defendant justice of the ministerial duty of entering formal judgment in his favor and to the other relief he seeks in his petition. Mandamus is a proper remedy in a case of this character. [State ex rel. v. Clayton, 34 Mo. App. 563; State ex rel. v. Cline, 85 Mo. App. 628; State ex rel. v. Adams, 76 Mb. 605; State ex rel. v. Horner, 86 Mo. 71.] The judgment is reversed and the cause remanded with directions to award a peremptory writ in • conformity with the views expressed. All concur.