109 N.W. 57 | N.D. | 1906
Lead Opinion
The plaintiffs are suing to recover damages for the alleged conversion of 38 head of cattle, which they claimed to own as partners when the cattle were seized by the defendant, who at the time of the seizure was the sheriff of McLean county. The defendant admits the seizure and sale of the cattle, but denies that they were the sole property of Ralph D. Ward, one of the plaintiffs. Defendant justifies the seizure and sale by virtue of proceedings to collect certain delinquent personal property taxes assessed against Ralph D. Ward in McLean county.. There was a trial to a jury, which found in favor of defendant, and judgment was entered accordingly. Plaintiffs moved in the alternative for judgment notwithstanding the verdict or for a new trial, which motion was- heard and denied before the entry of judgment. This appeal is from the judgment.
One of the main questions in controversy at the trial was as to the ownership of the cattle. The defendant claimed that Ralph D. Ward was the sole owner thereof, and denied that the other two plaintiffs had any interest therein. In relation to this issue the defendant’s counsel propounded to the county treasurer, who was a witness, the following question: “State whether or not Ralph
There was no error in denying plaintiffs’ motion for a directed verdict, and hence the motion for judgment notwithstanding the verdict was also properly denied. On this point plaintiffs contend: (1) That there was no issue made by the answer as to plaintiffs’ alleged joint ownership of the cattle on the date of the conversion; (2) that the place where the seizure by the sheriff was made was outside the boundaries of McLean county. We think the criticism of the answer is hypercritical. The complaint alleged the conversion on October 3, 1903. The denial of plaintiffs’ alleged ownership found in the answer is in the present tense, and, strictly construed, simply denies that the plaintiffs were the owners on the day the answer was dated or verified; but it is perfectly plain that it is merely a grammatical error, which could mislead no one, and which would have been speedily corrected, if attention had been called to it before the trial. We think it is one of those trivial defects which the court is directed to disregard by section 5300. Rev. Codes 1899 (Rev. Codes 1905, section 6886). The answer 'also contains a general denial, and in the part of the answer pleading the justification it is stated in express terms that the levy was made upon cattle then belonging to Ralph D. Ward.
The plaintiffs contend that the cattle in question were seized outside of McLean county, where the defendant and the taxing officers of that county had no authority to act. The defendant contends, on the other hand, that the place of seizure lies within McLean county, and that the seizure and sale were therefore made with legal authority. The pleadings fix the place of seizure upon section 22, township 148, range 86. This is within the boundaries of Me-
For the reason first above stated, the judgment will be reversed, and a new trial granted. It is not necessary to express any opinion as to whether the special verdict in this case is sufficient, or as to whether the insufficiency of the verdict would be ground for
Concurrence Opinion
(concurring). I concur in the result, but place my concurrence in the reversal upon the insufficiency of the special verdict. At the close of the testimony the court, against the objection and exception of plaintiffs’ counsel, submitted the case to the jury for a special verdict upon six questions. No general verdict was returned. The special verdict, consisting of the questions and the jury’s answers thereto, is as follows: “Verdict: (1) What was the value of the property in question at the time of the alleged sale thereof by the defendant ? Five hundred and eighty-five dollars ($585.00). (2) Who was the owner of the cattle in question at the time of the alleged sale thereof by the defendant? Ralph D. Ward. (3) Was the plaintiff Ralph D. Ward the sole owner of the cattle in question at the time of the alleged sale thereof by the defendant? Yes. (4) What, if any, interest did the plaintiff Ralph D. Ward have in the cattle in question at the time of the alleged sale thereof by the defendant, and what was the value of such interest? Sole owner. Value, $585.00. (5) What, if any, interest did the plaintiff Milan G. Ward have in the cattle in question at the time of the alleged sale thereof by the defendant, and what was the value of such interest? He had no interest. (6) What, if any, interest did the plaintiff William O. Ward have in the cattle in question at the time of the alleged sale thereof by the defendant, and what was the value of such interest? He had no interest. J. R. Howell, Foreman.” Upon motion of defendant’s counsel, judgment was entered upon the special verdict dismissing plaintiffs’ action and for costs.
In my opinion it was error to submit the case to the jury upon the six questions embraced in the special verdict and to subsequently enter judgment thereon. The so-called special verdict covers only a part of the ultimate facts in issue, and there was no general verdict. The plaintiff did not waive a trial by jury, and they were entitled either to a general verdict or to a special verdict covering all of the ultimate facts in issue. Where a case is submitted to a jury for a special verdict, the facts must be submitted and found, so “that nothing shall remain to the court but to draw from them conclusions of law.” Section 5444, Rev. Codes 1899 (section 7033, Rev. Codes 1905), reads as follows: “* * * The verdict of a jury is either general or special: (1) A general
■Counsel for respondent concede the insufficiency of the special verdict, but contend that, when taken in connection with the evidence in the case, it supports the judgment. They contend that an examination of the evidence will show that the material allegations of the defendant’s answer, alleged by way of justification, are sustained by undisputed evidence, and that for the purposes of the judgment this is equivalent to a finding that the property was not wrongfully taken but that it was rightfully seized and sold. This presents the question whether a judgment will be sustained where it rests in part upon a defective special verdict and in part upon the evidence as to a material fact in issue as to which there is no finding. In my opinion there is no authority of law for the entry of judgment in such cases. The requisites of a special verdict under our statute (section 7033, supra) do not differ from those of a special verdict at common law. The rule is universal that the special verdict must find every materiál fact in issue, and the find
The Wisconsin rule that the evidence may be referred to to. supply facts omitted in the special verdict has not been accepted even in that state without dissent. See dissenting views of Chief Justice Ryan in Ward v. Busack, 46 Wis. 407, 1 N. W. 107. The Supreme Court of the United States in Hodges v. Easton, 106 U. S. 408, 1 Sup. Ct. 307, 27 L. Ed. 16-9, a case arising in Wisconsin, declined to follow the rule of that state. In that case the special verdict did not cover all of the material facts in issue. The trial court ordered judgment upon the special verdict and upon the “facts conceded or not disputed upon the trial.” The judgment was reversed and a new trial ordered upon the ground that the issues of fact triable by jury were not submitted to the jury in the mode required by law. Mr. Justice Harlan speaking for the court, said: “* * * The record discloses that the defendants had a determination by the jury of a part of the facts, while other facts, upon which the final judgment was rested, were found by the court to have been conceded or not disputed. If we should presume that there were no mtaerial facts considered by the court beyond those found in the answers to special questions, then, as we have seen, the facts found do not authorize the judgment. If, on the other hand, we should adjudge it to have been defendants’ duty to preserve the evidence in a bill of exceptions, and that, in deference to the decisions of the state court, it should be presumed; that the ‘facts conceded or not disputed at the trial’ were, ia connection with the facts ascertained by the jury, ample to support the judgment, we then have a case at law, which the jury was; sworn to try, determined as to certain material facts by the court alone, without a waiver of a jury trial as to such facts. It was the province of the jury to pass upon the issues of fact, and it was the right of the defendants, secured by the Constitution of the United States, to have them do so. That right could have been waived, but it could not be taken from them by the court. If, upon the trial, all the facts essential to recovery had been undis
The rule laid down in the cases above cited was followed by this court in the recent case of Sonnesyn v. Akin, 14 N. D. 248, 104 N. W. 1026. It is a mistrial where, as in this case, there is no general verdict, and the jury’s answers to specific questions do not cover all of the facts in issue. Manning v. Monaghan, 23 N. Y. 539. The insufficiency of the special verdict requires a reversal of the judgment.
I concur in what is said as to the present status of McLean county and its freedom from collateral attack.