2 N.M. 40 | N.M. | 1880
This was an action of replevin brought into this court by writ of error from the county of . Grant.
The record shows that the plaintiff filed a motion to dismiss the suit at his own cost; that the court ordered the case to be dismissed, except for the purpose of assessing the value of the property replevied, and for damages and for judgment in favor of the defendant; that a jury came “to assess the value of the said property and the damages sustained by the defendant; ” that the jury say in their verdict, that they “ do assess the damages of the property mentioned in the declaration at eight hundred and twenty-five dollars, and the actual damages of the defendant at six per centum per annum, to be twenty-four and jW dollars,” and that the court gave judgment against plaintiff, and the sureties on his replevin bond for “the said sum of eight hundred and twenty-five dollars, the assessed value of the property mentioned in the declaration, and the further sum of forty-nine -finr dollars, double damages assessed by the jury as aforesaid for the detention of the same.”
The first error assigned is, “ that after the court allowed said cause to be dismissed, it had no jurisdiction to render a judgment against plaintiff for anything but costs, but it ordered a jury to come and inquire of plaintiff’s damages and gave a judgment therefor.”
The supreme court of Missouri in construing their statute on replevin, from which ours was copied, say, “ the plaintiff in a replevin suit cannot by a discontinuance of the action or by suffering a nonsuit prevent a judgment being rendered against him for damages or for a return of the property.”
We approve this construction of the statute and adopt it as the law of this case. The dismissal of the suit as described in the record, amounts to just this : that the plaintiff abandoned his case and the court consented to that abandonment. It is not material in what form of words these facts are set forth, nor does this (so called) dismissal affect the defendant’s right to the verdict and judgment in his favor. So far as his rights were concerned, the court had no .power under the statute to dismiss the suit, and in fact it did not do so. The intention of the law was carried out by the court, and there is no material error in the manner in which it was done if indeed there is any error at all.
In fact, the greater part of the record which sets forth the dismissal of the case might perhaps be regarded as surplusage under our statute, as it amounts to nothing beyond showing that the plaintiff had abandoned his suit as already stated.
The second error assigned is that “ the verdict of the jury does not conform to the law in that it finds the damages of the property instead of its assessed value,” and the third error is substantially the same as the second. The verdict is certainly not-well expressed, but the jury are not required by the statute to use any particular form or words. It would have been better if they had used the word value, or some equivalent word instead of the word damages. But the meaning of the jury is plain. It was certainly understood at the time it was given, to be substantially right and sufficiently clear, as the court rendered a correct judgment upon it. The use of the word damages complained of, may be a mere clerical error. The rule adopted by some of the courts, that “ when on the whole record, we see that injustice has not been done a defendant, it would be going too far to deprive a plaintiff of a recovery upon no better grounds than the bare informality of a verdict ” is correct, and is in principle applicable to this case.
The fourth error assigned grows out of the replevin bond, but as the bond has not been before us in any form, we cannot very well consider this objection. In fact it seemed to be abandoned in the argument before this court.
The double damages complained of seem to be expressly authorized by our statute. See Compiled Laws of New Mexico, p. 244, sec. 1.
Upon this whole record we see no ground of reversal, and the judgment of the district court must be sustained.
Judgment below affirmed.
