42 Mo. 169 | Mo. | 1868
delivered tbe opinion of tbe court
This action was instituted, in tbe Dade Circuit Court, upon a promissory note. Tbe answer simply denied tbe execution of tbe note, and, tbe cause being submitted to a jury, tbe following verdict was rendered: £< We, tbe jury, find tbe issue in favor of tbe plaintiff.” Tbe jury being thereupon discharged, tbe court proceeded to ascertain tbe amount then due upon tbe note, including principal and interest, and rendered judgment for tbe same. Upon an appeal to tbe District Court, this judgment was affirmed, and tbe defendant, Nickell, has again taken an appeal to this court.
Tbe sufficiency of tbe verdict to authorize tbe judgment of tbe Circuit Court is tbe only question presented by tbe record. Gren. Stat. 1865, chap. 169, §§ 21 and 26, contain tbe provisions by which this question must be determined. Tbe first directs that ££ in every issue for tbe recovery of money only, or specific real or personal property, tbe jury shall render a general verdict.” Tbe next provides as follows : “ When a verdict shall be found for tbe plaintiff, in an action for tbe recovery of money only, tbe jury shall also assess tbe amount of the recovery,” etc. It is plain that tbe jury must make a finding upon all tbe issues presented by tbe pleadings. All tbe facts'necessary to support tbe judgment must be found, and tbe court is not authorized to invade the province of the jury in this respect.
Tbe action here is for tbe recovery of money only, and tbe general verdict finding tbe issue for tbe plaintiff was only a part of tbe duty absolutely imposed by tbe statute upon tbe jury.
Tbe assessment of tbe amount of tbe recovery to which tbe plaintiff was entitled could only be made upon a finding of tbe facts shown by tbe evidence in tbe cause, and is not necessarily tbe amount alleged to be due in tbe petition. It is insisted, on tbe part of tbe respondent, that this irregularity is of such a character as not to affect prejudicially tbe rights of tbe defendant below.
The amount of the debt due at the time was not passed upon by the jurors, and this could only be done by them as the triers of the fact. The note upon which the suit was brought .is not to be taken as conclusive evidence of the amount due, and the court could not assume that fact from the general verdict rendered. The recognition of such a practice as this, we think, would open the door to innumerable errors and irregularities. These can be easily avoided by following, in all cases, the plain and obvious meaning of. the statute.
The judgment of the District Court must be reversed and the cause remanded to the Dade Circuit Court.