13 Wis. 419 | Wis. | 1861
By the Court,
There is no doubt that the judgment in this case must be reversed. It was an action to recover possession of personal property which was replevied and delivered to the plaintiff upon an undertaking given in pursuance of the statute. The verdict was for the plaintiff, and the jury found the value of the property and assessed the damages. The judgment was entered for the value, damages and costs. The effect of this, if allowed to stand, would be to give the plaintiff the property and its value. It must therefore be reversed. '
But we have had some doubt whether we should order a new trial, or remand the cause with directions to enter a proper judgment on the verdict. -And this depends on the question whether the verdict is itself sufficient to sustain a judgment. The complaint averred that the plaintiff was the owner and entitled to the possession of the property, and that
There are of course many cases bolding that where there are two or more issues, and tbe jury limit their finding to one, that is not sufficient. Such are tbe following: Bemus vs. Beekman, 3 Wend., 667; Sprague vs. Kneeland, 12 id., 163; Boynton vs. Page, 13 id., 431. But those decisions do not reach the question. They decide that a verdict disposing of a part of the issues only is not sufficient. But they do not decide that a verdict passing upon any issue generally in favor of the one party or the other, is not sufficient to dispose of it. On the contrary, the court, in those cases (3 Wend., 671; 8 id., 164), say that if the verdict had been for the plaintiff generally, it would have been sufficient.
I have thus referred to the authorities at some length, for the reason that our present conclusion may be somewhat at variance with some former intimations of this court. In Donaldson vs. Johnson, 2 Chand., 160, there were two issues, and a general verdict for the defendants. The court hold that it was not sufficient in point of form, though they say it would have been “ enough to warrant the court below to put it in proper form.” And because that was not done in the court below, they said it was then too late to correct it. They refer to the case just cited in 12 Wend. But that case does not sustain the position that a judgment should be reversed for a mere formal defect in a verdict, while the appellate court concedes it to be substantially sufficient. On the contrary, the judgment in that case was reversed because the verdict was defective in substance in not disposing of all the issues at all. And it is very certain that under the law as it now is, a judgment ought not to be reversed for such a defect of form in the verdict. R. S. 1858, chap. 125, sec. 60; Warren vs. Gordon, 10 Wis., 499.
In the case of Smith vs. Phelps, 7 Wis, 211, the judgment was properly reversed for several reasons. But it must be
We do not think, therefore, that there should be any new trial; but the verdict being sufficient to warrant a judgment, the circuit court should, when the cause is remanded, enter such a judgment as the plaintiff was entitled to; that is, for the possession and damages and costs.
The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.