15 F. 645 | S.D. Ga. | 1882
The 29 grounds assigned for a new trial and in arrest of judgment in this case may be arranged under the following heads:
(1) Error of the judge (a) in sustaining demurrer to defendant’s second plea; (6) in allowing plaintiff to amend by adding a second count; (c) in rejecting evidence; (d) in instructions given to the jury, and in neglecting to give certain instructions to the jury; (e) in allowing the plaintiff’s counsel to write out the verdict rendered in the case.
(2) Error of the jury—the verdict being informal and illegal; and (a) contrary to law; (6) contrary to the evidence; (c) contrary to the charge of the court; (d) not responsive to the issues in the case.
(S) Misconduct in impaneling the jury to the prejudice of the defendant.
There are affidavits submitted from nearly all the jurors to the effect that some did and some did not understand the issues involved in the case, and the force and effect of the verdict found by them; but I do not find that movant makes any point on this. And I further understand that the grounds referring to the manner of impaneling the jury are withdrawn. If I am wrong in this, then the questions are disposed of by saying that jurors will not be heard to impeach their own verdict; and that the affidavits show no miscom duct on the part of any one in the matter of impaneling the jury.
“ The gist of the action of trover is the wrongful conversion of the property of the plaintiff by the defendant. The wrongful detention of the property is a conversion, and in a tortious act all are principals and equally liable. A servant may be charged in trover, though the conversion be done by him, however innocently, for the benefit of the master, and it is immaterial whether he had his master’s authority or not. Leigh, Nisi Prius, 1480; Stephens v. Elwall, 4 Maule & S. 259.” Porter v. Thomas, 23 Ga. 471; Georgia Code, § 2213.
Whatever error there may have been in allowing the plaintiffs to amend, and I am unable to perceive any, was fully corrected by the withdrawal by plaintiffs’ counsel during the trial, and before the jury retired, of the obnoxious amendment. The only evidence rejected on the trial, against the defendant, was evidence wholly in support of the second plea, to which a demurrer was properly sustained. But in fact, as the record shows, the evidence showing defendant’s business relations with his wife, and his agency, and the knowledge of the plaintiffs, was all before the jury, notwithstanding the adverse ruling of the court. No requests on the part of the defendant were made to instruct the jury upon any point, nor were any objections made nor exceptions taken to the charges and instructions given by the judge to the jury. According to the practice of this court, objections to the charge of the judge to the jury come too late if first made after verdict. See Bule 17, Circuit Court Bules. The plaintiffs’ counsel was not permitted to write out the verdict and procure the foreman to sign it. The verdict was written out in open court by the foreman himself, in the presence of the other jurors and the counsel on each side, the latter knowing what was being written and making no objection. In fact there was nothing to object to, as the shaping of the verdict was perfectly regular and proper. See Georgia Code, § 3562.
The verdict is for a certain sum as damages.
Upon the trial the plaintiff elected to demand a verdict for damages, and not demand an alternative verdict for the property or its value. This, I understand, is permitted by section 3564 of the Georgia Code.
We now come to the grounds that the verdict is contrary to the evidence and to the instruction of the judge. The evidence shows that the defendant received August 1, 1881, sundry notes and mortgages, amounting in principal to $4,501.50, substantially bearing interest from October 1, 1881, from the plaintiff for collection and -return proceeds; that plaintiffs owned and held these notes as eollateral security of a certain debt or debts of Charlotte Coley, defendant’s wife and alleged principal, the original amount of which was not clearly shown; that defendant returned to the amount of $251.46; that defendant had collected or disposed of the remaining notes, and had remitted to plaintiffs as proceeds thereof $1,900; and that plaintiffs’ debt against Charlotte Coley, as evidenced by notes offered on the trial, still outstanding, amounted to $2,849.52, with interest from about November 15, 1881.
. It is true that now some opposition is made to the establishment of the remittances amounting to $1,900; but the brief of evidence shows that defendant swore to it unqualifiedly, and plaintiffs offered nothing to dispute him on this point. Indeed, my own recollection is that during the trial I asked counsel for plaintiffs if he denied this amount having been paid, and he replied that he did not dispute it. The jury were instructed in effect that the plaintiffs could recover damages only to the extent of their interest in the property; that as they received the notes only as collateral to a debt due from the defendant, (as the jury were authorized t to treat it,) that interest could not exceed the amount of the debt, nor the amount in valué of the collateral unaccounted for. The jury found damages to the amount of the debt, as is plain from the verdict. If this amount is in excess of the amount of the deposited notes unaccounted for, it is erroneous to that extent.
The total amount of the collateral was - - - $4,501 50
Amount of notes returned, ... $ 251 46
Remitted, - - - - 1,900 00
Collateral accounted for, .... - 2,151 46
Collateral unaccounted for, .... - $2,350 04
The following order will be entered on the motions for a new trial and in arrest of judgment:
Eor the written reasons on file, it is ordered and-adjudged that a new trial be granted in this case, unless the plaintiffs, within 10 days from the filing hereof, shall write off from the verdict and judgment in the sum of $499.48, with interest thereon from November 15,1881. In case such remitter is entered within the delay aforesaid, the said motions for a new trial and in arrest of judgment are overruled and discharged, with costs.