68 Ga. 247 | Ga. | 1881
R. T. Plarvey sued out an attachment against C. C. Wilson, and caused the same to be levied on a tract of land in Monroe county, containing 180 acres, and one-half interest in a house and lot in the town of Forsyth. Judgment was obtained at the September term, 1876, of Monroe superior court, for the sum of three thousand eight hundred and eighty-five dollars and fifteen cents, principal and interest four thousand six hundred and forty-five dollars and seventy-five cents, and costs, against the property levied on. Execution issued and was levied on the property attached, which was claimed by Josiah Freeman, trustee for Mrs. Sarah A. Freeman, who gave W. H. Head as security on the damage and cost bond. The claim case was tried at August term, 1878, of Monroe superior court, and the following verdict was rendered: “We, the jury, find the property subject,'and twenty-six per cent damages.” At the same term of the court judgment was signed up by plaintiff’s attorneys against the claimant and W. H. Head security, for the cost, and two hundred and sixty dollars damages,being twenty-six per cent on one thousand dollars, the judgment stating the value of the property, one thous- and dollars. The judgment thus signed was approved by his honor, Judge Grice, who tried the claim case. The judgment declared the property subject to the execution, and that the value of the property levied on was one thousand dollars (the sum due on the judgment was more than eight thousand dollars), and in terms adjudged in favor of plaintiff in fi. fa., two hundred and sixty dollars against claimant and W. H. Head, security, as damages. Execution was duly issued on this judgment against claimant and Head, the security for the amount, and levied on the
This last mentioned decision wás made September 4th, 1880. The judgment signed on the verdict in the claim case, and approved by Judge Grice, was at August term, 1878. The claim case of Harvey vs. Freeman, trustee, was carried by bill of exceptions to the supreme court, and there dismissed, affirming the judgment of the court below. Upon the trial of the illegality before Judge Lawson, in September, 1880, the plaintiff in fi. fa., in order to show that the construction of the verdict rendered as aforesaid was involved in the case that went to the supreme court, and that objections to the verdict could then be made, offered in evidence the bill of exceptions which was filed to the judgment of the court in the claim case, and which was dismissed, as before stated, affirming the judgment of the court in 1878. The evidence thus offered was rejected by the court, which was error.
The plaintiff in fi. fa. offered in evidence the record of the evidence in the claim case, which resulted in the verdict, to-wit, the testimony of Ham, that the half-interest in the house and lot in Forsyth was worth from five to six hundred dollars, and the testimony of R. T. Harvey that “ the land in the country levied on is worth from five to six hundred dollars.” This evidence was also rejected. The court made the decision on the merits as stated, and plaintiff in error excepted to all this.
The rule, we think, is this : A verdict may be amended
The issues for the jury to pass on were two: Was the property subject or not subject to the fi. fa.? And if subject, was the claim interposed for delay only ? Both issues were passed upon by the jury.
The evidence of Ham and Harney as to the value of the property had been heard by Judge Grice; the sound of the voices of the witnesses had scarcely died out when he acted, and was made apart of the record in the motion for new trial, which was refused, and bill of exceptions filed.
When the execution exceeds in amount the value of the property levied on, !t is proper for the jury to assess the value. If they do not assess the value of the property at a less sum than the amount of the fi. fa., what is the effect of the verdict? Does it mean twenty-six per cent, on the amount of the fi. fa.? If this is its effect, the amendment and construction of the verdict, by the judg
An examination of the cases, in reference to amendment and construction of verdicts, will show how strictly courts adhere to the rule, “when the intention of the jury is manifest, the court will set right matter of form.” Hawkes vs. Crofton, 2 Burrows, 698.
Thus in Petrie vs. Harney, 3 Tenn. R., 659, the defendant had pleaded the general issue and the statute of limitation. There was a verdict for the plaintiff upon the first plea, but nothing said about the other. The court ordered the verdict to be amended, so as to make it applicable to both issues. In Clark vs. Lamb, 8 Pickering, 415, when the jury, in a general verdict, failed to pass upon an issue which applied to the same cause of action as the others, it was held that the verdict might be amended from the judge’s notes.
From these and other cases we may extract this principle: that where the jury, in a general verdict, omit to-pass upon some issues that do not invalidate the cause of action set forth, the verdict may be amended to conform to the evidence as given on the trial. The amendment is-only made to conform to the manifest intention of the jury, which, not being expressly declared in the verdict, is ascertained from the record. Where no doubt exists, it would be an unnecessary obstruction to the administration of justice to refuse an amendment. Profatt on Jury Trial; Emerson vs. Bleckley, 2 Abb. Appeal Decisions, 22. Verdicts may be amended according to the evidence.
Verdict for $9.80.88, construed by the “ affidavit, the declaration and the proof,” (40 Ga., 252) to mean $980:88. It would seem that if objection could be properly
“If the court direct the judgment entry different from and unauthorized by the verdict rendered, the proper mode to present the point for revision is to except to the action of the court.” Layman vs. Hendrix, 1 Ala. Rep., 212.
Judgment reversed.