50 Conn. 341 | Conn. | 1882
It is important to consider how this case stood in the trial court on the hearing in damages.
The defendants had demurred to the plaintiffs’ declaration, the court had adjudged the declaration sufficient, and the defendants had neglected and refused to plead further to it, or take any measures to review the judgment of the court upon the demurrer. In this state of things there was but one course left to be taken, and that was a hearing in damages. The parties came before the court for such hearing. The plaintiffs proved the value of their property destroyed at the time of the injury complained of, together with such other facts as pertained to the case. The defendants had a full opportunity to offer evidence upon the question of their negligence, which was the basis of the suit, but they neglected to improve it, and rested their case without offering any testimony. There was no parol evidence before the court on either side regarding the defendants-’ negligence, and nothing whatever for the judgment of the court to rest upon touching the matter, except the presumption of law arising upon the demurrer in connection with the amount of the plaintiffs’ loss which had been proved. In this condition of the case both parties rested, and there was nothing remaining to be done but to determine the amount of damages that the plaintiffs should
Now, suppose the court had reserved the ease for the advice of this court, instead of deciding it; what would have been its advice ? Manifestly, in the light of its decision on the motion in error, it would have been to render judgment for the full amount of the plaintiffs’ damage, and that would have ended the case. The defendants would never have asked to be permitted, much less have claimed the right, to go back of all that had been done, and be allowed to change their pleadings and try the case de novo, when they had taken their chance of success in the course they had chosen to pursue, and had lost. Indeed, the door would have been closed to them if the request had been made, as it would have been closed to the plaintiffs if the advice of this court had been for nominal damages. Judge HiiTMAN, speaking on this subject in McAlister v. Clark, 33 Conn., 257, says: “We are aware that sonie stress is laid by the defendant upon the fact that the judgment of the Superior Court had not been entered up, in fact, at the time he made his motion. But the advice of the Supreme Court of Errors had been given to enter it up, and the parties knew precisely what it would be, and to allow advantage to be thus taken of the interval between the giving of the advice and the actual rendering of the judgment, is the same in effect as to allow a change of plea after judgment is in fact rendered.” The principle of that case applies with all its force to the present one. The judgment of the trial court had to be for the plaintiffs to recover one or the other of two sums; either for the sum of $5,007 T%, or for a nominal sum. There was no other alternative. No other question was at issue. The court rendered judgment
The defendants further claim, that the finding of facts does not sustain the judgment that was rendered and that it is therefore erroneous.
This claim is based on the following finding of the court: “ The plaintiffs offered no evidence to prove negligence on the part of the defendants, and so the court does not find the. defendants guilty of negligence. The defendants offered no evidence in the cause.”
It is claimed that this is a finding that the defendants were not guilty of negligence. We do not so understand it. We construe it to mean that the court makes no finding whatever on the question of the defendants’ negligence in fact, because the plaintiffs offered no evidence on the subject. The court could not have made any other finding as the case stood, for there was no evidence before the court tending to show whether the defendants were or were not guilty of negligence in fact. There was nothing for the court to find, and nothing upon which to base a finding of fact. The admissions of the demurrer, taken in connection with the proof of the amount of the plaintiffs’ damage, this court held established a primd facie case in favor of the plaintiffs for the recovery of the full amount of their damages. This, though not a basis for a finding of facts, was sufficient to sustain the judgment that was finally rendered.
Again, it is claimed that it no where appears in the find
There is no error in the judgment complained of.
In tins opinion the other judges concurred.