1 Colo. 18 | Colo. | 1864
This is an appeal from the judgment of the district court of Arapahoe county. On the 3d of June, 1862, the appellee filed his affidavit in attachment against James L. Dorsett, Gr. B. Reed and F. Dorsett, junior, in aid of an action of assumpsit against the persons last named, commenced the same day. The cause of action consisted of a certain note made by the above-named defendants to the said Crew, on the 11th day of August, 1860, and payable three months from date, for the sum of $221. On the 4th of August, 1862, a summons issued against Gr. B. Reed, James L. Dorsett and F. Dorsett, jun., returnable to August term, 1862, of the said district court. There was no return of sheriff on .the summons. On the fifth of August a writ of attachment issued against the property of James L. Dorsett alone, returnable to August term of said court.
On the 6th of August, 1862, the writ of attachment was returned executed June 3, 1862, by attaching three brown horse mules and one brown mare mule, the property of James L. Dorsett. On the 25th July, 1862, the plaintiff filed his declaration herein, containing two counts: 1. Count on the promissory note; 2. Common count for goods, wares, etc., and for work and labor, money had and received
At the August term of said court, the defendant, James L. Dorsett, appeared and filed a motion to dismiss the suit for want of a sufficient affidavit. The motion was overruled and an exception taken. Said J. L. Dorsett then filed his plea in abatement, denying the allegations set forth in the affidavit. Issue joined on said plea by the plaintiff and cause tried by a jury.
The court gave oral instructions to the jury, and made oral explanations to the written instructions given to the jury.
The jury rendered the following verdict: “J. H. Grew v. G. B. Meed, James L. Dorsett and F. Dorsett, Jr. We, the jury in the above-entitled cause, find verdict for plain tiff. Amount, $221.66 of note, without interest. C. H. Martin, foreman.” The court rendered judgment on the verdict of the jury against all the defendants for the sum of $221.66. • N
On the 6th day of September, 1862, during the same term of said court, and two days after the entering of the judgment, the said James L. Dorsett, who was the only one of the defendants who had appeared or who had been served with process, made a motion for a new trial, and set down in his said motion, among others, the following reasons. There are seven causes assigned why a new trial should be granted, but it is necessary to notice only the following: 1. The verdict is contrary to the law and the evidence; 4. Because the court gave oral instructions and also oral explanations of his own written instructions; 7. And for other good and sufficient reasons.
This motion was accompanied by the affidavit of the said James L. Dorsett, for the purpose of supporting the same. This affidavit set forth the fact that the court gave the oral instructions above mentioned to the jury, and that the court also gave oral explanations, etc., etc.
This motion was overruled and exceptions taken. An appeal was prayed for, and it was ordered that the same be.
As was remarked above, we decline considering all the reasons set down by the appellant in his motion for a new trial. We will advert to the error assigned on behalf of appellant, and on which he relies for the reversion of the judgment of the court below. But in doing this we will not consider in their order all the errors assigned, for the reason that we have not the authorities before us, which would enable us to treat each one of them in detail; neither does it become necessary to arrive at a .just conclusion in determining our final action in the premises. We will, therefore, refer to the third, fifth and seventh errors assigned. They are as follows: 3d. The court erred in overruling the motion for new trial; 5th. The court erred in giving oral instructions and in explaining orally his written instructions ; 7th. The court erred in receiving the verdict, and in rendering judgment for more than was claimed in the affidavit and declaration.
The evidence upon which the jury found their verdict is contained in the bill of exceptions, although, perhaps, the bill of exceptions is technically deficient in not stating that this was all the evidence offered in the trial of the case, and, if the court below had refused a new trial upon the ground that the evidence did not warrant the finding of the jury, we should not feel disposed to interfere, for the reason' that it is the peculiar province of the jury to find the facts from the evidence, and where there is conflicting evidence on both sides of the case, the court will not disturb the verdict or grant a new trial, unless it is apparent that great injustice would be done the opposite party in refusing the same. It is manifest that there was evidence on both sides upon which the jury could make their finding. But-the question arises, did the court below err in receiving the verdict of the jury in this case? We think that it did. The verdict is against all the defendants, or, at least, it would seem that
5. The next error which we shall notice is No. 5, in the series set down in the appellant’s brief, and is as follows: 'The court erred in giving oral instructions and by explaining orally his written instructions. If we had found nothing else wrong in the record of this case, this would ■ be a fatal error upon which the judgment of the court below must be reversed.
By the statute of this territory (1st Sess. 282, § 28), we find the following provision: “The district court in all cases, both civil and criminal, shall only instruct the petit jury as to the law of the case, and such instruction shall be reduced to writing, and may be taken by the jury in their retirement and returned by them with their verdict,” etc.
We now proceed to the last error which we will notice in this connection.
7. That is as follows: “The court erred in receiving the verdict and in rendering judgment in this case for more than was claimed in the affidavit and declaration.”
The note, which is mentioned in the verdict of the jury, is the same note mentioned in the affidavit and declaration on which this action was based. The verdict of the jury was clearly wrong, from the internal evidence which it bore on its face. The amount claimed in the affidavit was $221. No matter what might be claimed in the ad damnum. If it is clear that the jury only intended to find that the amount due the plaintiff was the face of the note, without interest,- which we think is the case, there should have been no mistaking their intentions. The excess is but a small sum indeed, but it was the duty of the plaintiff and not
The jury only found the amount of the note without interest, and fixed the sum at $221.66. How they could find the amount of sixty-six cents over and above the note, when the note was found to be due without interest, is not known to us. The verdict was clearly wrong from the statement contained in the body of the same. Therefore the verdict was wrong for two reasons ; 1, the excess over the face of the note, and in the second place it was against all the defendants, or, if we are mistaken in this, then the court could not enter judgment against all of the defendants. The reason why is stated in the former part of this opinion. There are other errors assigned by appellant which are worthy of notice, but, for reasons above given, we cannot examine them in detail here. We think that the authorities cited by appellant, and many of those also by the appellee, bear us out in arriving at the conclusion to which we have come, that the judgment of the court below must be reversed, which is done accordingly, with costs, and this cause is remanded for further proceedings.
Reversed,