Hosea's Widow & Heirs v. Miles , 13 La. 107 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The defendant complains of the judgment on the following grounds;

1. The court cumulated the exceptions with the merits, and ordered them to be tried together.

2. A continuance was improperly refused.

3. Parole evidence of heirship was improperly received.

4. It did not establish the heirship.

5. The verdict is illegal, null and void.

6. The judgment is illegal, there being no evidence of the costs of protest.

pult"'issue sue, is a matter may properly be ‘“he other matters of defence on the merits, the peremptory“ex? on which a oontmu-shouid^be^esial by affi“ Heirship may paroie'evWenc'Z A verdict‘£or the plaintiff” without stating 0rrobject,aTs°'in-correct, and should be set aside, and a new lualsranttd- . A verdict and judgment winch are deficient in qüh-ed01byS h™~ bsee“n!j“ygd but when this seSonofainhe ncces“aiy to pronounce def^'wiu^remier .s"ohsUoJu]rtS“ave been given in the court below on ihe merits.

I. On the first point, we are referred to the Code of Practice, article 344, which does not appear to relate to the subject. The defendant was sued on a note, which he had given to the late husband and father of the present plaintiffs, The exception was, that the plaintiffs were not the widow' and heirs of the payee of the note. The general issue was also pleaded. The capacity of the plaintiffs, as widow and heirs, was a matter of fact, which was properly submitted to the jury, with the other part of the defence ; the whole being peremptory exceptions.

II. The record does not show that, the facts on which the . , , i i, i , continuance was asked were established by an affidavit.

III. Children can seldom establish the relation in which they stand to their parents, otherwise than by parole.

IY. The testimony clearly establishes the heirship.

V. The verdict is in the following words : “ Verdict in favor of plaintiffs.” The Code of Practice says, the form of a general verdict consists in the foreman endorsing on the back of the petition these words, “ Verdict for the plaintiff, for so much.” Article 552.

The verdict was, in our opinion, incorrect, and the judge erred in refusing the new trial which was asked on that nd Slouna-

_ . VI. The judgment is illegal, because it contains none of the reasons on which it is grounded ; and the costs of the protest and notices are not supported by evidence. It must, therefore, be annulled and reversed.

The Code of Practice, article 905, provides, that when the Supreme Court reverses the judgment of an inferior court, it shall pronounce on the case the judgment which the lower court should have rendered, if it be in possession of all the facts and testimony to enable it to pronounce definitively. In the present case, the evidence shows that the plaintiffs are the widow and heirs of defendants creditor, and that the note sued on is that of the defendant. This the jury have found. For a verdict for the plaintiff, if it establish any thing, establishes that the jury find that the facts, on which ° i . the plaintiff claims, are proved, and the verdict is deficient, only in specifying (he sum which the plaintiff is to recover. We are, therefore,'in possession of all the facts necessary to pronounce definitively.

It may, however, be contended, that as the law authorizes parties to require a trial by jury, when this is done and we are dissatisfied with their verdict, it becomes our duty to remand the case. As this court possesses the right, and is under the obligation of examining questions of fact, as well as those of law, and as it is not provided with a jury, it follows, that it may become its duty to pronounce on a question of fact, in direct opposition to the verdict of the jury ; otherwise, there might be cases in which suitors could not be relieved in this cóurt, from erroneous decisions below. No doubt was ever entertained that this court can correct the errors of inferior judges on matters of fact. “ It is always with reluctance that we interfere with the verdict of the jury; but it is entitled to our regard in questions of fact only.” 11 Louisiana Reports, 303, Livaudais vs. Perret et al. In such cases, we are bound to regard, but not to adopt the verdict, so as to make it the basis of our judgment. In cases in which doubt exists in our minds, we remand a case for the opinion of another jury ; but if our doubts of the correctness of the verdict be very slight, we adopt it as the basis of our judgment, although our opinion differs from that of the jury. In the construction of the article of the code now under consideration, we held, in the cases of Segond vs. Thomas, 10 Louisiana Reports, 299, Tippet vs. Jett, 362, and Hanse et al. vs. New-Orleans Marine and Fire Insurance Company, 13, that when the sum found by the verdict is too large, or otherwise incorrect, the error of the jury is to be corrected by this court, without remanding the case.

Wherefore, it is further ordered, adjudged aud decreed,that the plaintiffs recover from the defendant the amount of the note sued upon, to wit: the sum of five hundred dollars, with interest at five per cent, from the date of the protest, to wit, the 3d of April, 1838, and three dollars costs of protest; the capacity of the plaintiffs to sue, and the execution and protest of the note being duly proved. The costs of suit in the court below to be paid by the defendant; the plaintiffs and appellees paying the costs of the appeal.