170 P. 715 | Or. | 1918
delivered the opinion of the court.
It is provided by Section 201, L. O. L.:
“If the trial be by jury, judgment shall he given by the court in conformity with the verdict and so entered by the clerk within the day on which the verdict is returned.”
The statute leaves no discretion in the trial court; its duty is clearly pointed out. The successful litigant should not suffer because the court has neglected to obey this provision of the law. Actus curiae neminem gravabit. It is held that where a confession of judgment is filed and there is an omission of the entry of the judgment in the journal, the rights of the judgment creditor will be protected by a nunc pro tunc order: Davidson v. Richardson, 50 Or. 323, 327 (89 Pac. 742, 91 Pac. 1080, 126 Am. St. Rep. 738, 17 L. R. A. (N. S.) 319); Doughty v. Meek, 105 Iowa, 16 (74 N. W. 744, 67 Am. St. Rep. 282); Risser v. Martin, 86 Iowa, 392 (53 N. W. 270). In the last of these cases it is said:
“The law operated in lieu of formal action by the court as a direction to the clerk to enter judgment. ’ ’
We think that this principle is equally applicable to the ease at bar. The case falls without the doctrine of Grover v. Hawthorne, 62 Or. 65, 75 (116 Pac. 100, 121 Pac. 804); Frederick & Nelson v. Bard, 66 Or. 259, 262 (134 Pac. 318), and National Council v. McGinn, 70 Or. 457, 461 (138 Pac. 493). The presumption that judgment was rendered in the case at bar is strengthened by defendants’ appeal therefrom and by the fact that on
It has been held that the portion of Section 201, L. O. L., quoted above is not mandatory, but directory: Skelton v. Newberg, 76 Or. 126, 136 (148 Pac. 53); Fisher v. Portland Ry., L. & P. Co., 77 Or. 529 (151 Pac. 735). "While the judgment in this case was entered after the lapse of a longer time than in the above cases, the defendants have not been prejudiced by the delay. They are taking advantage of the situation to raise on this appeal certain questions which were not mooted on the previous appeal.
The case of People v. Petit, 266 Ill. 628, 632 (107 N. E. 830), involved the construction of a statute which directed the clerk to enter judgment “before the final adjournment of the term or as soon thereafter as practicable.” The statute imposed on the clerk a fine for failure “to enter of record any order by or before the next term after it is rendered.” The judge’s docket showed that on October 17,1913, a verdict was received and judgment was ordered on the verdict. This judgment was not entered until December 4th. The verdict had been received at the September term of the court. The October term of the court intervened and no action was taken in the premises. The entry was not made until the December term. The Supreme Court said:
“The penalty for such failure was made to fall upon the clerk by way of fine, and it was not intended that a heavier penalty should fall upon litigants by the loss of the results of their litigation. There is no such limit of time as counsel urge, upon the authority of the clerk to enter the judgments, decrees and orders made by the court. ’ ’
The court was justified in entering judgment in the case at bar on April 13,1916.
“We, the jury in the above-entitled cause, find for the plaintiff, and assess the benefits to the property of defendants the same as is set forth in Ordinance No. 24,280 of the City of Portland.”
The ordinance referred to had been received in evidence. In Lew v. Lucas, 37 Or. 208, 212 (61 Pac. 344), Mr. Justice Bean says:
“A verdict should be construed liberally and not under the technical rules of construction which are applicable to pleadings; and, if the meaning of the jury can be ascertained and the point in issue can be concluded from its verdict the court will, however informally it may be expressed, mold it into form, and make it serve.”
In Consolidated Gold etc. Min. Co. v. Struthers, 41 Mont. 565, 569 (111 Pac. 152), it is said:
“A verdict is not to be technically construed, but is to be given such a reasonable construction as will carry out the obvious intention of the jury. In arriving at this intention, reference may be had to the issues made by the pleadings, the instructions submitted by the court, and the evidence introduced at the trial; and if by a fair and reasonable construction of it, in view of the whole record, the intention of the jury is manifest it should be allowed to stand. ’ ’
In Pittsburgh C. C. & St. L. R. Co. v. Darlington’s Admr., 129 Ky. 266, 271 (111 S. W. 360), it is said:
“Courts view the findings of the jury with great leniency, and every reasonable presumption is indulged in aid of a general verdict. The main thing is to get an understanding of what the jury intended. Their intent is to be sought for in the language they used in their verdict, interpreted in the light of the record. Resort may be had to the pleadings or other parts of the record to see what the jury meant by their verdict. ’ ’
“If the judgment assessed by the jury against any appellant be not less than that fixed in the assessment appealed from, the judgment, in addition to declaring the assessment found, shall be entered against such appellant and his sureties for his proportion of the costs of such appeal. ’ ’
The lower court gave a joint and several judgment against all of these defendants for Circuit Court costs. It is claimed that the costs should have been apportioned between the defendants, but we are not advised of the basis of the apportionment contended for. The record fails to show that this matter was called to the attention of the lower court or that the point relied on is reserved in any way. This circumstance precludes
The judgment is affirmed. Affirmed.