Eaton v. Caldwell

By the Cow't — Flandrau, J. This action was originally commenced in Justice’s Court. The complaint was in replevin for the wrongful detention of a horse; the value of the property was stated at one hundred dollars. The prayer of the [138] complaint was for the return of the property, and fifty dollars damages for the detention. The Defendant justifies, as Sheriff of the County of Ramsey, under an execution against one Charles S. Cave and another, alleging that the horse was the property of said Cave, and not the Plaintiff, asks a return to him, and fifty dollars damages for the detention. The case was tried in the District Court of Ramsey County, on appeal, and the Defendant had a verdict which was in these words: “The jury find a verdict in favor of the Respondent, and assess damages in the sum of seventy-five dollars.” Upon this verdict the Defendant entered a judgment, reciting that the verdict of the jury had assessed the value of the property at seventy-five dollars, and adjudging a return thereof to the Defendant, or in case a return could not be had, that the Defendant recover of the Plaintiff and his sureties in the appeal, the sum of seventy-five dollars, the value of the property. Upon the coming in of the verdict a motion for a new trial was noticed in open Court, but no stay of proceedings procured, and the Defendant perfected his judgment. When the motion was brought on for argument the Court held that it could not be entertained after judgment perfected. Prom the order denying the motion for a new trial and the judgment, this appeal is taken. We think ihe Judge erred in refusing to entertain the motion for a new trial, as the statute on the subject of new trials found on pages 564-5 of the new edition of the statutes, defines what a new trial is, and for what causes it can be granted, and the mode of obtaining it, without indicating anything which would confine the making of the motion to a time previous to the entry of judgment. The giving notice in open Court, or otherwise as prescribed, of the motion, is not per se a stay of proceedings, and does not prevent the entry of judgment; if it is desired to stay the entry of the judgment the party moving must obtain an order to that effect from the Judge. The party in whose favor the verdict is rendered can proceed at once and enter his judgment, if he is [139] willing to waive his costs, and can enter it in two days after verdict, by giving his adversary the regular notice of taxation of costs. It seems that the method pointed out by the statute for obtaining a new trial, concedes the point that a judgment may intervene before the hearing of the motion, as the time allowed for the preparation of a case by section 61, is greater than the time within which the successful party is entitled to his judgment. To hold the rule contended for by the Respondent, that a motion for a new trial can only be heard before judgment, would in almost all cases preclude the possibility of making the motion when it was founded on the causes mentioned in subdivisions 1, 2, 3 and 6 of section 58, as they are seldom discovered until after the trial has long been over and judgment perfected. The cases cited in support of the doctrine urged by the Respondent, were decided upon a rule of Court, which does not exist here. This however is not the principal question in the case. The jury did not assess the value of the property at all, and found damages for the Respondent in a greater sum than he claimed in his answer, to wit: seventy-five dollars, when he demanded but fifty, and he took a judgment for a return of the property, or if it could not be returned then for the value thereof, fixing it at seventy-five dollars, against the Plaintiff and his sureties. The relief which a Defendant is entitled to in an action of this nature is varied by the facts as they may be found by the jury ; he may if the property has been taken or detained from him, have a return of it to himself, with or without damages for the taking or detention as the jury may decide ; or if he thinks that he will be unable to procure a return of the property from any cause, then he should have the jury assess its value, in order that he may recover that in lieu of the article itself, to which amount may be added damages for the taking or detention as the jury may find. But a party cannot recover more damages than he claims, nor can he assume the value of the property to be ascertained by the amount of damages found, where no such assessment is made, as he has done in this case. If the Respondent was satisfied with a judgment for the [140] return of the property and damages, his proper course would have been to have remitted the excess, and taken judgment for the amount claimed, with a return; and if he desired the alternative judgment for the value of the property, in case a return could not be had, he should have insisted upon the jury assessing the value that he might predicate his judgment upon their finding. The Eespondent in this Court claims that he had a right to put the general verdict in form, as it was a finding of all the issues in his favor. This is true to a certain extent. The cause having been tried upon the issue of title to the property, and that alone, a general verdict for the Defendant would entitle him to a return of the property, and he might put his verdict in form so as to enter his judgment to that effect; but such a verdict would furnish no basis for an alternative judgment for the value of the property in case a return could not be had, and it cannot be called putting a verdict in form, to adopt the amount of damages found, as such a basis. This would be going entirely outside of the issues, and supplying a material fact not passed upon by the jury. Under the pleadings they could not give the Defendant but fifty dollars damages; they found seventy-five; but it does not follow by any means that the jury decided that to be the value of the horse. Therefore that part of the judgment which orders a recovery of seventy-five dollars against the Plaintiff’:, is matter that the jury have not in any way by their verdict allowed. They could not allow it as damages, and have omitted to assess the value of the property at all. For authority to put a general verdict in form see Sprague vs. Kneeland, 12 Wend. 161; 21 Wend. 19; 14 John. 83, 86; 8 Cowen 651. The proper remedy where a party enters a judgment not warranted by the verdict, is by an application to the Court in which it is entered to correct the record, or vacate the erroneous judgment and not by appeal or writ of error. Rhodes Rider vs. Bunts, 21 Wend. 19; Moody vs. Vreeland, 9 Wend. 125. The motion which the Court below refused to entertain was not to set aside the erroneous judgment, but [141] was aimed exclusively at the verdict. We think, however, that as the Court erred in its decision upon the motion, and the order is properly before us, we will in tMs case set aside the judgment and award a venire de novo. However erroneous the charge of the Judge may have been on the subject of a demand before the action could be maintained, the amendments to the case which were adopted by the operation of seGtion 61, page 565, new edition of the statutes, show that it was not excepted to, and is therefore not the subject of review here. New trial ordered.