37 Pa. Super. 488 | Pa. Super. Ct. | 1908
Opinion by
This was an action of trespass quare clausum fregit in which by his statement the plaintiff claimed, under the statute, to recover treble the value of certain timber trees, alleged to have been cut by the defendant on the plaintiff’s land, and carried away and converted to his own use by the defendant. The verdict, as recorded, was, the jury “find in favor of the plaintiff in the sum of $60.58.” Allusion is made in the appellee’s argument to the written memorandum of their finding brought into court by the jury, but it is well settled by the authorities that such paper, although filed and preserved, is no part of the record. The only verdict is that which the jury announced orally and which alone is received and recorded as the jury’s finding: Dornick v. Reichenback, 10 S. & R. 84; Kramer v. Kister, 187 Pa. 227, 233, and cases there cited; Commonwealth v. Houghton, 22 Pa. Superior Ct. 52; Commonwealth v. Flaherty, 25 Pa. Superior Ct. 490. It follows that the paper cannot be considered in the determination of the question whether the court was justified in entering judgment for treble the amount of the verdict. It has been authoritively determined by decisions construing the third section of the Act of March 29, 1824, P. L. 152, first, that a plaintiff cannot recover double or treble damages unless his declaration is sufficient to apprise the defendant of the fact that the action was brought under the statute; second, that
The questions sought to be raised by the remaining assignments of error are not even hinted at in the appellant’s statement of the questions involved. This is not in conformity to the rule of the court upon that subject. See Bousquet’s Estate, 206 Pa. 534. We have, however, given due consideration to these assignments and conclude that there would have been manifest error in affirming without qualification the defendant’s points to which they relate. The third point was erroneous because, as the learned judge said in his answer thereto, the stone corners referred to may not have been original or properly connected with the tract. He0 did not declare that they were not connected with the tract, but evidently meant that the question was for the jury, and the counsel for the appellant is in error in his suggestion that the refusal of the point practically withdrew that question from the jury. The other two points were faulty because they assumed that the fact that the plaintiff pointed out to a surveyor a certain
The fifth assignment of error is sustained. The judgment is reversed, and judgment is now directed in favor of the plaintiff for the amount of the verdict.