Pearsons v. Eaton

Graves J. Error is assigned in this case upon four grounds, namely: First: That the Court made an order on the 20th of January, 1868, reciting the loss of the files, and allowing the plea of the general issue to be filed on the exparte motion of the defendant in error. Second: In giving judgment of non-suit when default for want of a plea had been theretofore regularly taken of record, and never opened or set aside, and when no plea had been legally filed or served. Third: In the assessment of damages and, Fourth: In vacating the order setting aside the judgment of non-suit and restoring that judgment. The counsel for the plaintiff in error, in supporting the third assignment of error, contended that the judgment showed that the case was noticed for “trial” and not for assessment of damages, and then argued that the statute required the assessment of “damages” in actions of replevin to be made by a jury upon a notice of fourteen days. The counsel inadvertently overlooked the statute applicable to this case, and under which the Court was acting in forming judgment. It is true, that the judgment recites a notice of “ trial,” but it is equally true that no damages were assessed. The defendant in replevin elected to take judgment for the value of the property taken upon the writ, and it was the value of the property that was assessed, and not damages. This [81] was fully authorized by § 5038 Comp. L. as amended in 1865. — (Sess. L. 1865, p. 325.) The other questions which were argued at the bar, we think are not properly before us upon this writ of error, and we therefore decline to discuss them. In general there are questions in the progress'of a cause in the Circuit Court, which from their nature, cannot be re-examined in any form, while there may be others reviewable here on writ of error, and others still properly re-examinable, but in some other manner. It may not be easy in every instance to distinguish between questions belonging to these different classes, but we are satisfied that those here presented cannot be reviewed in this way without disregarding the settled course of decision in the common law courts. We are therefore of opinion that as ho error has been shown, the judgment of the court below must be affirmed, with costs. The other Justices concurred.