Perkins v. Wilson

3 Cal. 137 | Cal. | 1853

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

The question as to the power of the court to amend the verdict of a jury was fully considered upon the authorities in the case of Little v. Larrabee, 2 Greenleaf, R. 37; and the opinion given meets my entire approbation. The rule there laid down recognizes the power of the court to amend in “ those cases in which the incorrectness or defectiveness of the verdict consists in something merely formal, and which had no connection with the merits of the cause; where the amendment, when made, in no respect impairs or changes the rights of parties, but may only prevent the disturbance of the proceedings by writ of error; or by correcting clerical mistakes render the record consistent, and the verdict pursuant to the issue.”

Let us apply these principles to the present case. Here the two defendants each answered separately,—one denying any connection with the contract declared upon, or any liability to the plaintiff, the other confessing and avoiding, and setting up in further defence a right to recoupment of damages against the plaintiff. The jury find against the plaintiff, and five hundred dollars in favor of the defendants. i

The pleadings and evidence taken together show beyond question that but one defendant was entitled to the recovery, and the court below amended the verdict accordingly.

Does this amendment change or impair the rights of the parties? The defendant Garrotson does not complain that he is deprived of any right, nor could he be allowed to do so; he set up none in his answer, he propounded none in the evidence, and a recovery in his favor would not be allowed to stand.

The issue upon which the finding of damages against the plaintiff was obtained, was confined solely to, and pending between, the plaintiff and the defendant Wilson.

It seems, therefore, that the intention of the jury is clearly manifest, and the defect of their verdict is, in my view, merely of that formal character which justified the amendment of the court.

In all cases where the intent is so plain, and where, by no possibility, injury or injustice can be visited upon either party, it is the duty of this court to refrain from a disturbance of the judgment.

Judgment affirmed, with costs.