Stewart v. Pruett

The judgment of the court was pronounced by Preston, J. The plaintiff sued the defendants for damages for trespass, in disturbing him in the possession of some lumber, in the town of Bastrop. He obtained an injunction againsttheir acts, and complained in a supplemental petition, that they were violating the injunction, and the fact appealed, especially as to Pruett, by the sheriff’s return. The defendants severed in their answers, but each plead that the suit had been settled, with some other immaterial matters. They severed, also, in the trial of the case, and a verdict was rendered against Wilkins for twenty-five dollars, and against Pruett for fifty dollars damages, and for violation of the law, fifty dollars. The district court allowed the severance in the trial, and yet entered up a judgment in solido against the defendants, for one hundred and twenty-five dollars and costs. This is assigned as error, and we think the assignment must prevail. The verdicts are general, and the Code of Practice expressly requires, that judgment should be given pursuant to the verdict. Article 541. The defendants were undoubtedly liable, in solido, for their joint trespass, but for some reason, which does not appear in the record, they obtained separate trials, and the juries, for some cause, fixed different liabilities for each, by separate verdicts. The rule of law, that the judgment must follow the verdicts, must prevail. Many other errors have been assigned, which we have carefully examined, and think they cannot prevail in this court, as that the verdict against one of the defendants was not written on the petition. If important, it should have been corrected in the district court. So the jury gave a reason for part of their verdict against one of the defendants. It was unnecessary; but utile per inutile non vitiator. It is said, the reason given “for the. violation of law” is bad. On the contrary, the plaintiff having taken the legal and civil remedy of an injunction, to arrest the injuries which the defendants were causing him, the violation of the injunction, by continuing the trespass, was an aggravation of the injuries, and a just reason for increasing the damages. Motions for new trials were made and overruled, no bills of exception were taken, the case comes up without evidence in writing, or statement of facts. We are thus unable to judge, whether the newly discovered evidence was a sufficient ground for anew trial or not. One of the defendants swears, that the jury did not believe his witness to material facts, and that he had discovered another witness [728] to the same facts. The newly discovered testimony was therefore merely cumulative, and would not be a ground for a new trial, unless, perhaps, under very extraordinary circumstances. The judgment of the district court is reversed, at the costs of the appellee, and it is decreed, that the plaintiff recover from Mitchell J. Wilkins, twenty-five dollars, and from Adam Pruett one hundred dollars, and that the defendants be condemned, in solido, to pay the costs of the district court.