Massey v. Duren

7 S.C. 310 | S.C. | 1876

The opinion of the Court was delivered by

Moses, C. J.

This was an action of trespass to try title, in which the defendant, after pleading the general issue by a plea not very artificially drawn, justified the trespass alleged in the declaration by averring title to the locus in quo .in his infant son, Thomas R. Duren, in right of whom he entered. There was no exception to the charge of the presiding Judge, nor any request and refusal to charge before the jury left their seats.

The difficulty arises from the form of the verdict, which, after finding “for the defendant the land in dispute,” with a seeming purpose to define the boundaries to which it intended to refer, is accompanied with the further words : “ The land in dispute wherein we find for the defendant is that occupied by Wiley R. Duren and ■designated on plat by a piece of white paper.” The jury were not to blame for the form which they adopted in responding to the issues raised by the pleadings, for the Court, before they retired, asked of the counsel on the respective sides,. “ What should be the form of the verdict?” While the plaintiff’s attorney replied, “If for the plaintiff, it should be ‘ We find for the plaintiff the land in dispute and damages.’” The attorneys for the defendant answered : “If for defendant, it should be ‘ We find for the defendant the land in dispute.’” And the presiding Judge, on these responses being made, instructed the jury to shape the verdict the one way or tho other in conformity to them. The plaintiff, not being able to contest the verdict for error of law, not having made a single exception to the charge of the Court, now seeks to set it aside as not representing any conclusion by the jury on the issues submitted.

The issues made by the pleadings presented questions which were only to be affirmatively or negatively answered by the jury. If affirmatively, then the plaintiffs were entitled to recover; if negatively, then, as they failed to sustain the allegations of their declaration, they took nothing by their action, and the defendant was entitled to a verdict, which would have amounted to no more than the expression by the jury that the plaintiffs had not proved their case.

The finding, then, was really of the “substantial matter” involved in the pleadings. Mr. Justice Washington, in Patterson vs. U. S., (2 Wheat., 225,) says : “It is true that if the jury find the issue, and something more, the latter part of the finding will be rejected as surplusage.” In delivering the opinion of the Court in Weekman ads. City Council, (2 Speer, 395,) Judge Wardlaw said : “It is only when a verdict, before certain and valid, has been cumbered by the addition of useless matter not qualifying the previous meaning that the addition can be rejected as surplusage.” In-the case at bar, the verdict, without the words which “ cumber” it, was certain as to the intention of the jury, and valid as their expression on the very issues on which they were to pass. To set it aside, because of additional words, which do not really qualify the judgment of the jury on the material issues involved, and thus permit a second trial, where nothing in the course of the trial was excepted to, would be without any sufficient cause, and more particularly here, when the plaintiffs by their silence at the time they should have spoken contributed to the very error of which they now complain. The verdict must stand and be recognized simply as one for the defendant, and only as such have effect.

The motion is dismissed.

Wright, A. J., and Willard. A. J., concurred.