Clouser v. Patterson

122 Pa. 372 | Pa. | 1888

Opinion,

Me. Justice Williams :

The proceedings in this case were under a feigned issue to determine the title to the several articles of personal property levied on by the sheriff as the property of Jacob Clouser. The claimant was the wife of the defendant in the writs. She asserted a title in her own right to all the property levied on, which consisted of the following farm stock, viz., 20 sheep., 8 head of cattle, 3 horses and 8 hogs.

The testimony is not printed in the paper books, but the learned judge, before whom the case was tried, has incorporated some portions of it in his charge to the jury. From this we learn that two articles, viz., the Parker mare and the Peoples cow, were claimed by purchase, while the others were claimed by gift and as the increase of the Peoples cow and the articles acquired by gift. The title to the sheep the claimant states thus: “In the spring of 1873 my father gave me a lamb. I kept it, and it increased, and these twenty sheep in controversy I raised from the lamb my father gave me.” To the hogs she makes her title in this way: “I always owned hogs. He (Clouser) traded the one I had to Dr. Mallet. I did not want her. Jake traded her off and got another.” This other and its brood make the eight hogs levied on. Five head of the cattle were alleged to be descended from the Peoples cow, and two others from a cow given to the claimant by her mother-in-law, while two of the horses were claimed as descended from a mare that had been given to her by one of her husband’s creditors, who had bought it at a sheriff’s sale of her husband’s, goods.

The court submitted the bona fides of the acquisition of the-original lamb, cow, and other articles to the jury, with the instruction that the increase would follow the ownership of the dam. “ The court assumes the responsibility,” said the learned judge, “ for this instruction, and you are to raise no question as to the law on the subject. When the wife owns the dam, the ewe, the sow, the cow, or the mare, she is entitled to all the young.” Under this instruction the jury found the claimant to be the owner of all the articles levied on, except the Parker mare and the Peoples cow. The jury carried the doctrine, partus sequitur ventrem, beyond the court’s exposition of it, and, while unable to. find that-the claimant had more than a fractional interest in the Peoples cow, they gave the five head of cattle descended from her to the claimant, and put a money value upon the husband’s interest in this remarkable animal. This verdict was rendered in October, 1887. In April, 1888, the court modified the verdict by striking out the values put upon the husband’s title to the Parker mare and the Peoples cow, and by transferring the progeny of the Peoples cow to the defendants, who were found to be entitled to the cow. This action is assigned for error.

So far as the order of the court below, striking out the valuation put on the husband’s title is concerned, we think it was clearly right. The legal effect of the verdict was in favor of the defendants for the Parker mare and the Peoples cow, and for the plaintiff for the other articles levied on. This verdict, if mistaken, or for any other reason erroneous, in the opinion of the court below, should have been set aside; but, to take articles which the jury found to belong to one person and transfer them to another in accordance with what the judge may regard as the logical necessities of the situation, is not to mould, but to' make a verdict. The power of a judge to put a verdict into form so as to make it express the real finding of the jury, is well settled. It has been exercised in many cases, among which are Keen v. Hopkins, 48 Pa. 445 ; Beates v. Retallick, 23 Pa. 288; Roddy v. Harah, 62 Pa. 129; Watkins v. v. B. & L. Association, of Hyde Park, 97 Pa. 514.

In this case the jury intended to give the increase of the Peoples cow to the claimant. Their action was not in accordance with the directions of the learned judge, and for that reason it might with propriety have been set aside, but if left to stand, as the verdict, the power of the judge extended only to the putting it in legal form. If the judge could transfer the five head of cattle from the claimant, notwithstanding the verdict rendered by the jury, in order to make the verdict conform to his views of what the jury should have found, it is not easy to see why he might not transfer the sheep and the other articles, if in his opinion the claimant bad not made out a good title, and thus amend the claimant’s verdict off the record and enter judgment in favor of the defendants upon a verdict of his own finding.

So much of the order of April 24, 1888, as transfers to the defendants the progeny of the Peoples cow is set aside. And judgment is now entered on the verdict in favor of the defendants for the Parker mare and the Peoples cow, and for the plaintiff for all the other articles enumerated in the levy.