Svendsen v. Ketchmark, File No. 4032

File No. 4032 | S.D. | May 26, 1917

M-cGO-Y, J.

This action was brought against -defendants, as sureties on a -redelivery undertaking in Claim and -delivery, executed and delivered by them- 'in a -certain other -action wherein this plaintiff was plaintiff, and James Con-don an-d Charles Bailey were -defendants, to recover the -amount -of the undertaking; judgmerit in the claim and delivery action 'having been in favor of the plaintiff. This action was tried to tire court without a jury, jury having -been waived, and findings andi judgment were in favOr of plaintiff, and 'defendants appeal.

On 'the trial of this action, the plaintiff offered in evidence the papers and files which constituted the judgment roll in tire replevin, or claim and delivery action, to 'ail of which' defendants made objection and took exception© to the adverse 'rulings .of the court in admitting such papers and files in evidence. Defendants also raise the question of the sufficiency of .the evidence to -sustain the findings and judgment. The specific contention of appellants is that the verdict in the claim and delivery -action was irregular and void, in that it did- not find upon all the material issues, namely, that itfhie issue of tíre value of a certain cow which was the subject of the action was not pas'sed upon or found by the jury, and that by reason thereof the judgment in that action was irregular and void on the ground that -there was no verdict sufficient to sustain .the same. With this contention we do not agree. In the claim and delivery action, by her complaint the plaintiff claimed to he the owner of a certain cow .of the alleged value oif $80, the possession of 'which was claimed to have been wrongfully taken and detained from plaintiff, by defendants, to her damage in the sum of $80; tire -general- prayer for relief in said complaint demanded judgment against defendants for the possession of said co>w, or, in case delivery could not be made, for the sum' of $80, the value thereof. The answer was a general denial. On 'the trial of the claim' anld delivery 'action, the court, among other things, instructed! the jury as follows:

“In case your verdict should be in favor of the plaintiff, it will be substantially this: ‘We, the jury, find in favor of the plainitff upon 'ail the issues, and that she is the'owner of the cibw described in the complaint, and entitled to the immediate possession thereof, and in case such possession cannot be had we assess her dam-ages at -dollar®.’ Here insert the value of the cow.”

The jury returned the following verdict:

“We, the jury, find1 for the plaintiff upon all the issues, and that she is the owner of the oow described in the complaint and entitled to the - 'immediate possession thereof, -and in case such possession cannot be had we assess her .damages -at 75 dollars.”

While we are of the view ithat this verdict was somewhat irregular in form, still there can be no possible doubt under the complaint and the instructions to the jury but whiat this last clause of the verdict, “we assess her damages at 75 dollars/’ was intended to be and .does represent itihe finding of the jury as to the value of the cow, and ithat therefore said verdict was sufficient to sustain the judgment in the claim- and delivery action. A verdict is said to be the answer -or response of a jury given to the court concerning the issues submitted to them for determination by the court through the means of instructions. 40 Cy-c. 189.

“The verdict must with reasonable -certainty show what finding -or recovery the jury intended to award; and if a verdict, uncertain in this respect when returned, cannot be made certain by the -aid' of and reference to the record, it is fatally defective.” Abbott’s Civil Jury Trials, p. 758.

The pleadings and instructions- in the claim and delivery case leave no room- for possible doubt as to the meaning and intent of the jury, as expressed by the verdi-ct, that the $75 -damages represented, and was intended by the jury to he, the value of the cow. This precise question, was passed upon by this court in the case of Town v. Liedle et al., 10 S. D. 460, 74 N.W. 232" court="S.D." date_filed="1898-02-02" href="https://app.midpage.ai/document/towne-v-liedle-6685049?utm_source=webapp" opinion_id="6685049">74 N. W. 232, wherein this court held that, in a claim -and delivery action- under the record' in that case and from the manner of submission, a verdict in the following form., “We, the jury, find for the plaintiff and against the defendant Liedle, and assess his damages at $78,” was not strictly accurate, but that the intention of the jury was unmistakable that the “$78” damages represented and was the finding of the value of the property, that, had Objection been made to the form, of the verdict when rendered, the irregularity might have been reformed, that said verdi-ct whs sufficent to support the judgment. This seems to be the rule which also obtains in other jurisdictions. Western Stage Co. v. Walker, 2 Iowa, 504" court="Iowa" date_filed="1856-06-15" href="https://app.midpage.ai/document/western-stage-co-v-walker-7091087?utm_source=webapp" opinion_id="7091087">2 Iowa, 504, 65 Am. Dec. 789. So far as -appears from the record, no -objection was ever made to' the form- of the verdict in the claim' and delivery •action in question in the case at bar. This irregularity might have been correlated in that action, but as it was only a mere irregularity, under the record of that case, as shown by the testimony in this -case, said verdict w-as sufficient to sustain the said judgment.

Other assignments of error are made, all of which 'have been examined.

Finding no error in the record, the judgment and order appeal from are affirmed.'