Gamble v. Sentman

Miller, J., after stating the case, delivered the opinion of the Court. The motion to dismiss the writ of error in this case is overruled. The judgment was rendered on the 1st of April, 1887. The petition for the writ was filed in due time, on the 11th of April, and the order of Court allowing it, was passed on the 30th of June following. The transcript of the record reached this Court on the 5th of September, within three months from the date of the order allowing the writ, and under Rule 2, relating to appeals as amended by rule 27, the time for transmission runs from the date of that order. The third plea is in the form set out in 1 Toe’s PI. <&P., sec. 611, and is similar to that found in 2 (Jhitty’s PI., (VWi Amer. Ed.,) 471. It admits part of the plaintiff's claim with tender and payment into Court of such part, and denies the residue. It is in effect a plea of payment of money into Court, under secs. 19 and 20, Art. 75 of the Code, which is a species of tender. 1 Poe’s PI. & Pr., sec. 695. These sections are substantially copied from the statute of 3rd [76] and 4th William IV, ch. 42, sec. 21, and the Rules as to costs thereby provided. Their object is to encourage the settlement of suits without the cost and delay of trial. They allow a defendant, except in certain actions, “to pay into Court a sum of money by way of compensation or amends,” and such payment may set up by plea. The plaintiff then, after the money has thus been paid in, may reply by accepting the same “in full satisfaction and discharge of the action,” and if he does this he may have his costs taxed, and if they be not immediately paid, he shall have judgment therefor ; or he may reply that the sum paid in “is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded, and in the event of an issue thereon being found for f¿ie defendant, the defendant shall be entitled to his costs of suit and the plaintiff to so much of the sum paid into Court as shall be foundfor him.” In the present case the plaintiff adopted the latter course. His replication follows the language of the statute, issue was joined upon it, and in view of this issue and the provisions of the statute, the question arises how is the sealed verdict to be interpreted ? The concluding paragraph of the law as above quoted, plainly indicates that where the plaintiff replies that the money paid in is not enough to satisfy bis claim, it is the duty of the Court to hold on to the money until the issue on that replication is decided, and then to pay over to the plaintiff only so much of it as the jury may find to be due him. It also indicates with equal clearness that upon such issue the jury may find either that the whole amount paid in or a less sum is due to the plaintiff, and whether their verdict be for the whole or a Jess sum, it is practically a verdict for the defendant, because the plaintiff has not succeeded in maintaining his replication. But the sealed verdict in this case is for the plaintiff generally for a specific sum without stating (as it ought to have done,) whether it was for the sum paid in or not, and it has been [77] earnestly contended by counsel for the defendant in error, that it is a verdict in favor of the plaintiff for damages ultra the amount paid in, and that such is its necessary construction and legal effect. In this view the Court below concurred and acted accordingly. They allowed the plaintiff to take out of Court the 8160 paid in, and to recover another sum of $160 by giving judgment in his favor on the verdict. After a careful consideration of the question and of the able argument of counsel thereon, we are of opinion this was error. Ordinarily there is little difficulty in determining what a verdict means, and we are mindful of the rule that on writ of error every intendment must be made in support of the verdict. But in this case and under the issues joined on these pleadings, and the peculiar provisions of the statute, we think the true meaning of this verdict is that the jury found that the plaintiff was entitled to the sum paid into Court, and no more. It is for the precise sum so paid in, and this is a circumstance which has potent weight in determining its meaning and the intention of the jury in finding it. Again, the note as declared on in the first count of the declaration bore interest on its face from its date, and the jury were bound to allow such interest in making up their verdict if their intention was to give the plaintiff 8160 in addition to what was paid in. But by no correct method of calculating interest up to the time the verdict was rendered, could this sum be made out as then due on this note over and above the amount paid in. Such then being in our opinion the true construction and legal effect of this verdict, it follows that the Court, after directing the money to be delivered to the plaintiff, should, under the statute, have entered judgment on the verdict for the defendants, and directed the costs of the suit to be taxed in their favor. The question we have thus decided is plainly presented by the third and fifth assignments of error in the petition for the writ, and as this disposes of the case it dispenses with the [78] necessity of considering the other grounds of error set out in the petition for the writ. We reverse the judgment and remand the case, in order that a judgment may be entered and the costs taxed as above stated. (Decided 15th December, 1887.) Judgment reversed, and cause remanded. The record entries show that after the Court had overruled the defendants’ motion to amend the judgment they prayed an appeal on the same day, which was the 1st of April, 1887. This appeal has been docketed in this Court, hut the motion to dismiss it must prevail as the transcript of the record was not transmitted to this Court within three months from the date of the appeal, according to the Rule on that subject. Appeal dismissed. Bryan, J., dissented.