Gordon v. Higley

BY THE COURT. The only question presented, in this case, is, whether the Court below was right in directing the alteration of the verdict. It is contended by the Counsel for the Plaintiff in Error, first, that the Record does not show the nature of the original action — so that the District Court had no legitimate guide in assimilating the verdict to any of the approved technical forms, and, in the next place, that though the District Court has authority to correct mere clerical errors in entering the.verdict of the Jury, it has none to change that verdict itself, even in matter of form. In the return of the Justice this action is styled an Action of Assumpsit. The proce dings in the Justice’s Court are not fully set out in the1 transcript. Enough, however, appears there to prevent all doubt as to the nature of the action. Any formal defect, in this particular, should have been remedied (if at all) in the District Court. The Statute in relation to appeals declares, “that, upon the return of the Justice being filed in the clerk’s office, the court shall be possesed of the cause, and shall proceed to hear, try, and determine the same qnew, without regarding any error, defect, or other imperfection in the proceedings of the Justice. — [Laws of 1837, 8 p. 176.) This Court cannot countenance objections founded on defects which might have been corrected in the Court below, and of which, even without such correction, no advantage could there have been taken. We must, therefore, regard this case as though it had been an action of assumpsit, regularly brought and conducted. We think, also, that the Court below was right in directing the alteration of the verdict. No form of expression could have more explicitly revealed the intention of the jury than that by them adopted. We are not now called upon to decide whether any precise form of words is necessary in a case like this; but, at all events, we-think it perfectly proper for the District Court to direct such a change in the language of the Jury, as to make their verdict correspond to the usual forms, whenever such change cannot, by possibility, alter the evident meaning of their verdict. This may be done without the consent of the jury, or even should they positively object, and is therefore perfectly proper after their separation. In coming to this conclusion, we are not unsupported by authority. The Supreme Court of the State of New York (7 Cow. 29) have decided, that, in an Action of Replevin, whore the jury merely found “for the plaintiff,” it was proper for the Court to allow “six cents costs,” and “six cents damages,” to be added to the verdict by the clerk, “it being a mere matter of form and incident to the finding of the jury. This was not the correction of a mere clerical [13] error, but the actual finding of the jury was changed by the direction of the Dec. Court. We are, therefore, of opinion that the decision of the Court below be 1839. sustained. Judgment affirmed.