16 Mont. 87 | Mont. | 1895
This is an action of replevin. Plaintiffs in their complaint state that they are the owners, and entitled to the possession, of a large amount of jewelry, which they allege defendants to be in the wrongful possession of.
The appellants contend that the court had no authority, on the verdict rendered, to enter judgment for the return of the property taken by the sheriff from the defendants, and de
Under our statute (section 277, Code Civ. Proc.), a failure to find all the facts that should be found by a jury does not invalidate the verdict. (Miles v. Edsall, 7 Mont. 185.)
In Sumner v. Cook, 12 Kan. 162, a case involving quite all the facts and circumstances disclosed by this record, and where the verdict was exactly like the one in this case, Mr. Justice Brewer, delivering the opinion of the court, says: Two questions are in this case. The action in the district court was one of replevin. The property had been delivered to the plaintiff. The verdict was for the defendants. The judgment entered was that defendants recover their costs. At the same term, on motion of defendants, the judgment was modified so as to include a return of the property. Upon the verdict the defendants were entitled to such judgment. (Kayser v. Bauer, 5 Kan. 202.) A failure of the jury to find the value did not invalidate the verdict or prevent a judgment for the return. (Marix v. Franke, 9 Kan. 132.) The court had the power upon motion to modify the judgment. (Code, §§ 568, 569.) The grounds for the modification are not disclosed in the motion nor the record, and we must therefore presume them sufficient. How the error in the judgment happened we are not informed, and’must therefore presume it was from a mistake or omission of the clerk, which the court had power to correct by motion. Both parties appeared, and were heard by counsel on the motion. No advantage was therefore taken, and no error is apparent in the ruling. ’ ’
In Anderson v. O'Laughlin, 1 Mont. 81, where there was a general verdict for the defendant, in a case like the one at bar, the court say: “We see no error in the face of the record before us of which appellant has a right to complain. He is not injured by the form of the verdict. The respondent might complain that the jury failed to find, in their verdict, the value
That the verdict was irregular and incomplete, and that the judgment was not in the alternative for the return of the property, or the value ^hereof, were matters of which the defendants might complain; but we fail to see how the plaintiffs could be injured on account of said irregularities or defects. (Cob-bey on Replevin, § 1108, and authorities cited.) We think the judgment should be affirmed; and it is so ordered.
Affirmed.