37 Ark. 544 | Ark. | 1881
STATEMENT.
Ford brought an action of replevin against Hanf, before a Justice of the Peace, to recover a horse, a ■mule, and a two-horse wagon and gear. The value of each was set forth in his affidavit, which was made to answer the purpose of a complaint. The property was bonded by defendant and retained. Upon trial, judgment was ren•dered against the plaintiff, who appealed to the Circuit Court. He was there, against the objection of the defendant, ¡allowed to amend his affidavit so as to increase the amount of damages claimed. Upon a trial in the Circuit Court the jury found for the plaintiff,.fixing the value of the property, in solido, at $250, and assessing damages at $100. Whereupon, the court rendered judgment that he recover of the •defendant, the horse, mule, and wagon, and harness, or their value — $250—and $100 damages, and costs.
The defendant moved for a new trial, upon the grounds that the jury had found the value of the property above 'the value alleged in the plaintiff’s affidavit, and that the ver•dict was without evidence to support it, and contrary to the evidence and instructions of the court. Whereupon the plaintiff offered to remit the excess of the value found •over that set forth in the affidavit. The motion for a new trial was then considered and overruled, but- the -court set aside and held for naught the judgment which had been entered, and declared another in its place, •adopting the remittitur, and considering “that the plain-tiff have and recover of the defendant $205, for the value •of the property and the damages, besides all the costs ■of this suit, and that he have execution therefor.” The -defendant appealed.
OPINION.
The case above cited came up on writ of error, and this court; without any motion shown in the court below to correct the error, of itself reversed the judgment. The case settles the law as to the nature of the verdict, and the mode of its correction, and would be a precedent as to the practice, for ordering the new trial on motion first made here, save for a subsequent enactment of the Code (Gantt’s Digest, sec. 1100), which provides that “a judgment or final order shall not be reversed for an error, which can be corrected on motion in the inferior courts', until such motion has been made there and overruled.” This is decisive. A motion for a new trial was not only permissible in the court below, but proper. Only by a new trial can any relief be afforded. No motion on that ground was made, and this case comes not only within the letter, but the spirit and intention of the Code provision. It was passed to avoid that delay and expense which result from the practice of allowing errors, easily corrected on the spot, to be passed sub silentio by those affected, in the expectation that, other points failing, they may have them corrected at some future day, through an appeal or writ of error. The verdict is .such an one as a judgment in the alternative might be rendered upon, and was ; and if that judgment had been allowed to stand, corrected only as to the true excess, in accordance with the remittitur, it would not have been reversed on this appeal.
As to the verdict being without evidence, we may say that-there was enough before the jury to justify them, in accordance with their ordinary knowledge of -human affairs, in finding that the property had not been properly obtained from the plaintiff, and that it and the damages for detention were of the values found.
The first ground of motion for a new trial was cured by the remittitur, and the others were not well taken. The-court committed no error in overruling it. The verdict,, modified by the remittitur, must stand, as no objection was-made to it in proper time, upon tenable grounds.
For error in the judgment, it must be reversed, at cost of' appellee.
Remand the cause, with directions to the court below to render an alternative judgment, in accordance with the verdict as diminished by the remittitur, to bear interest from the date of the first judgment entered.