57 So. 46 | Ala. | 1911
Section 3781 of the Code of 1907 prescribes the kind of verdict and judgment in detinue.
Where the plaintiff .recovers, the verdict and judgment should be in the alternative for the specific chattels sued for, or, if they are not to be had, for the value thereof as assessed by the jury. — McCullough v. Floyd, 103 Ala. 448, 15 South. 848; Brown v. Brown, 5 Ala. 508. A mere moneyed verdict and judgment is not responsive to the complaint and is foreign to the cause of action therein stated. This court has frequently reversed cases in detinue, where the verdict and judgment did not substantially conform to the statute. — Jernigan v. Willoughby, 159 Ala. 650, 48 South. 812, and cases there cited, as well as other cases not there cited.
This court has often held that a complaint which did not support a cause of action would not support a judgment. We also think that a judgment not responsive to a complaint, or which cannot be based upon the cause of action therein set out, is invalid. It would be monstrous to hold that a complaint in unlawful detainer would support a moneyed judgment alone; and a moneyed judgment upon a complaint in detinue is equally as inconsistent and is a legal impossibility. — Munday v. Nail, 34 N. J. Law, 423. “A judgment upon issues not made by the pleadings 'is at least erroneous, and may be set aside or reversed in a proper proceeding for
We do not think that the complaint in question will support the moneyed judgment, and that it was erroneously rendered and should be reversed. It is true that section 4143 says: “No judgment can he arrested, annulled, or set aside for any matter, not previously objected to, if the complaint states a substantial cause of action.” We think the meaning of this statute, if it now applies to appeals, is that the complaint must state such a cause of action as will support the judgment in question, and that it does not mean that the judgment should be sustained if determining a right or cause of action not set up in the complaint. We do not think that it means that a moneyed judgment can be upheld upon a complaint in detinue, or that a judgment in ejectment should be upheld if the complaint states only a substantial cause of action on a promissory note. In the cases in which this statute was invoked to save the judgments, the said judgments conformed to the cause of action set up in the complaint, and were not foreign thereto. — Smith v. Dick, 95 Ala. 311, 10 South. 845; Ritch v. Thornton, 65 Ala. 310; Government St. R. R. v. Hanlon, 53 Ala. 70.
The error is fatal to an affirmance of the case, notwithstanding the point was not taken in the trial court.
Section 4143 of our Code is one, or a part of one, of the numerous statutes of jeofailes or amendments, passed first by the Legislatures of the various states. This one, as is well known, was intended to prevent the arrest or reversal of judgments as for mere defects in the form of the declaration, complaint, bill, or petition; and to require that as to such formal defects advantage should be taken by special demurrer or other special pleading, so that such formal defect could be amended while the pleading ivas in fieri. Before the passage of such statutes, judgments were constantly arrested and reversed for merely formal defects, and though such defects were never complained of until after verdict and judgment.
So the object and purpose of this particular statute was to change this rule, and limit objections to the judg
This particular statute or its progenitor has been in force in this state for a hundred years, since even before the state was admitted into the Union. It was enacted by the Legislature of the Mississippi Territory, in the year 1811, and has been with us continuously ever since. It therefore appeared in our first Code (of 1852) as section 2405. It was intended, and has always been construed, to be applicable only to the sufficiency of the declaration, complaint, bill, or petition, and not to the sufficiency of the verdict or the judgment. There are other statutes and rules of law that relate to the sufficiency of the verdict and judgment. The one in question has no relation to, and can have no effect rvhatever upon, the sufficiency of a verdict to support a given judgment, or the responsiveness of a verdict to the issues.
This section therefore has no application to the question involved in the case certified to us by the Court of Appeals. That question is whether a given verdict responds to the issues made by the pleadings sufficiently to support the judgment rendered by the trial court and appealed from. No objection is taken, nor appears tenable, to the sufficiency of the declaration or complaint, so the statute in question can have no application.
The verdict in question was clearly not responsive to the issues, and, while the judgment follows the verdict, it is bad, of course, because the verdict was bad, and it has nothing to stand upon. The verdict in question is
The statute in question relates exclusively to the sufficiency of a declaration or complaint to support a judgment, and not to the sufficiency of a verdict, nor to whether it responds to the issues.
The rules of law applicable to'the case at bar are thus stated in the books:
“Judgment is sometimes arrested, when the pleadings are good, for faults in the verdict. If the verdict vary substantially from the issue (as if, instead of finding the matter in issue, either way, the jury find something foreign to it), judgment must be arrested, because the finding does not ascertain the matter of fact in issue, and cannot therefore show for which party judgment ought to be given.
“The rule is the same when the verdict finds only part of the matter in issue — omitting to find, either way, another material part. For it is the duty of the jury to ascertain, and that of the court to give judgment upon all the material facts put in issue by the pleadings. But a verdict, finding the whole substance of the issue is good, although it be silent as to what is immaterial, since the latter cannot affect the merits of the controversy.” — Gould’s Pleading, §§ 55, 56, p. 521; Stephen’s Pleading, 2d Appendix, note 7, p. cxxviii.
The true test of the sufficiency of a verdict to support a judgment was first announced by Washington, J., in the case of Patterson v. United States, 2 Wheat, 221, 4 L. Ed. 224, as follows: “A verdict is bad, if it varies from the issue in a substantial matter, or if it finds only a part of that which is in * * * issue. Whether
This was quoted and adopted as the true rule, by this court, in the case of Moody v. Keener, 7 Port. 235, 236, and has been followed ever since, notwithstanding the statute in question, or its progenitor not different in substance, has been continuously in force since the year 1811. In Moody’s Case, supra, the court concluded as follows: “The view we have falten is also confirmed by the case of Stearns v. Barrett, 1 Mason, 153 (Fed. Cas. No. 13,337), in which Judge Story observes That where a verdict is not expressed substantially in the terms of the issue, the case ought to be extremely clear, that should induce a court to make it the ground of a final judgment.’ As the verdict is not responsive to the issue, for this defect, the judgment of the circuit court must be reversed, and the cause remanded.”- — 7 Port. 237.
The above case was cited and followed, in both the majority and dissenting opinions, in the cases of Wittick v. Traun, 27 Ala. 562, and Trawn v. Wittick, 27 Ala. 570, in which cases, after full discussion (with the identical statute now in force), it was decided, and with dissenting opinions, as follows: “In detinue for
In the case of Handley v. Lawley, 90 Ala. 527, 8 South. 101, tbe two cases above quoted, from 27 Ala., are reviewed and overruled, by Stone, C. J., in the following language: “Tbe opinions of tbe majority of this court in Wittiok v. Taun, 27 Ala. 562 (62 Am. Dec. 778), and in Traun v. Wittiok, 27 Ala. 570, are relied on in support of tbe contention that the verdict in this case did not authorize tbe judgment rencleréd. In our opinion the views of tbe dissenting justice in those cases are supported by tbe stronger reasoning, and we concur with him. Tbe issues in this case authorized a separate finding, and we bold that, when tbe jury found in favor of tbe plaintiffs against one defendant, and said nothing as to tbe other, this was equivalent to a finding in favor of that other. ‘Expressum facit cessare taciturn’.”
But tbe rule anonunced by tbe text-writers, and by our court in tbe case of Moody v. Keener, supra, has never been departed from nor doubted, by this, or any other court, so far as I know. In none of these cases has it ever been supposed that section 4148 of the'Code, or its progenitors, bad any application to the question of tbe sufficiency of a verdict.