Lew v. Lucas

Mb.. Justice Bean, after stating the facts, delivered the. opinion of the court. 1. It is claimed that at the time the appeal was taken the record of the court below did not show any disposition of the motion for a continuance, or that the j ury impaneled to try the cause, and before which it was tried, was sworn as by law required. But the transcript, as filed, shows that the motion for a continuance was denied because the defendant admitted the testimony set out in the affidavit, and that the jury was properly sworn; and this is conclusive upon these questions. 2. An application for a continuance is addressed to the sound discretion of the trial court, and its action thereon will not be reviewed, except for a clear abuse of discretion : State v. Fiester, 32 Or. 254, 267 (50 Pac. 561). And, besides, the statute provides that “the court may require the moving party to state upon affidavit the evidence which he expects to obtain, and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed Hill’s Ann. Laws, § 179. So that, for either of these reasons, there was no error in denying the application for a continuance. 3. In view of the record, the only remaining question is whether the verdict as returned by the jury is sufficient to support the judgment. The general rule is that a verdict must comprehend the whole issue submitted to the jury, or a judgment entered thereon will be reversed: Wood v. Maguire, 17 Ga. 361 (63 Am. Dec. 246). But it is not necessary that it should be expressed in any particular language. It is sufficient, however informal it may be, when it covers the whole issue, and shows what the finding of the jury really is upon the issue presented [212] to it. A verdict should be construed liberally, and not under the technical rules of construction which are applicable to pleadings ; and, if the meaning of the jury can be ascertained and the point in issue can be concluded from its verdict, the court will, however informally it may be expressed, mold it into form, and make it serve : 28 Am. & Eng. Enc. Law (1 ed.), 370 ; 2 Thompson, Trials, § 2642; 2 Elliott, Gen. Prac. § 947; 20 Cent. Law J. (f) 147 ; 33 Cent. Law J. 358 ; Middleton v. Quigley, 12 N. J. Law, 352 ; Cohn r. Scheuer, 115 Pa. St. 178 (8 Atl. 421); Humphreys v. Borough of Woodstown, 48 N. J. Law, 588 (7 Atl. 301); Phillips v. Kent, 23 N. J. Law, 155. Applying these rules to the case at bar, we are of the opinion that the verdict is sufficient. It necessarily settles and determines the only contested issue between the parties, and there is no difficulty in ascertaining what the jury intended. The only point in dispute was whether the defendant was indebted to the plaintiffs for goods, wares, and merchandise sold, in excess of the $11.75 admitted by the answer, and which had been tendered to the plaintiffs prior to the commencement of the action. To this issue the evidence was directed, and it is covered and concluded by the finding of the jury in favor of the defendant; and we think the court was fully justified in proceeding as if the verdict had been amended to conform to the manifest intention of the jury, and in entering judgment accordingly. In Jacobs v. Oren, 30 Or. 593 (48 Pac. 431), which is relied upon by the plaintiffs, and which in many of its features is similar to the case now in hand, the question decided is that it was not error for the court upon its own motion to set aside a verdict of a jury and grant a new trial, when it had found contrary to the admissions in the answer. But in this case the court did not set aside the verdict, but treated it as amended to conform to the evident intention of the jury, and hence the case [213] cited is not in point. It follows from these views that the judgment of the court below must be affirmed, and it is so ordered. Affirmed.