Walker v. Commissioners of the Sinking Fund ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

The plaintiff in error, Walker, claimed several articles of personal property, which had been levied upon under an execution in favor of the defendants in error, against Samuel M. Puckett, et al. and gave a bond, with security, to try the right. At the proper term the plaintiffs in the execution, tendered an issue, according to the statute, in which the claimant failed to join. Judgment by default, was therefore taken against him, and a jury empannelled to assess the damages, and to say whether or not the claim was fraudulent. The jury returned their verdict, and a judgment was entered upon the finding, which was in these words : “ they assess the value of the property mentioned and specified in the claimant’s bond, at the sum of $4829 The judgment was for this round sum, and $482 for damages for delay. Eight days afterwards, but during the same term, the attorney of the plaintiffs in the execution, moved the court to correct the entry of the verdict and judgment, and the court sustained the motion. This entry is then made. “ It appearing to the satisfaction of the court that the clerk mistook the verdict of the jury and the judgment of the court predicated thereon, it is ordered by the court that the verdict and judgment heretofore made, be amended so as to read as follows : they assess the value of the five head of horses at $250; one hundred head of hogs at $150; one hundred head of cattle at $400 ; one lot of pork, $160; corn at $1505 ; twenty-five bales cotton, $625; lot of fodder, $140; do. oats, $100; sheep, $45; goats, $50; eight mules at $400; amounting in all, to $3875; being all the property mentioned in said claimant’s bond, and the specified value thereof, and they also say said claim was made for delay.” Then the court rendered judgment for the property, if to be had, if not, the value as assessed by the jury as aforesaid, and the sum of $382 statutory damages for delay.” This judgment is brought up by writ of error, for reversal.

As a general rule, the court may certainly correct its proceedings during the term at which they take place, if there is any thing to amend by. The records are said to remain in the breast of the court during the term. 1 Rob. Prac. 638. 3 Ib. Co. 323. 2 Wash. 130. 1 Tidd Pr. 710, 15. But this power of amendment, though very extensive, cannot be esteemed unlimited. In regard to verdicts, if the error be in matter of substance, it cannot be corrected by the court, after the discharge of the jury from the consideration of the case. Graham’s Pr. 661. 7 Cowen, 29; at all events, without their concurrence. Prussel v. Knowles, 4 Howard, 90. The statute, in regard to trials of this kind, directs 'that they shall be governed by the same rules which govern the action of detinue. In the first entry of the verdict, the value of the several articles of property is not assessed separately, but the whole aggregate is put down at a gross sum. This was erroneous, and was, in itself, good cause for reversal; there should have been a separate assessment of the respective values, so far as it could be done with convenience and certainty. 2 Call, 313. 2 Mun. 195. 1 Rob. Pr. 368. This error might have been cured by awarding another writ of inquiry; but. the court appears to have undertaken it without the aid of a jury. H. & H. 591, § 13. To cure the defects, the plaintiff moved the court to amend the first entry of the verdict and judgment. The court ordered the amendment to be made, but in carrying out the order, not only the form of the verdict, but its substance, as first entered, is materially changed. In the first entry, it is not stated that the claim was made for delay, in the last it is—in the first, only the aggregate value of the whole property is given—in the last, the value of each separate parcel is assessed, and the value is stated at a thousand dollars less than in the first entry. Here, then, is a complete change of the verdict in every essential particular. The first entry, we must presume, was in substantial conformity to the verdict—the last is wholly different, and we cannot presume it was amended by it, because of the material variance between them. And when we turn to the bond given for the property, we find the key to the last entry, because,the value therein specified, is the value put down in the entry, and the amount falls $1000 short of the •round assessment of the jury. The last entry does not amend the verdict, but makes a new one.

With an entire disposition to make all reasonable intendments and presumptions in favor of the judgment below, in this instance, we think it cannot be sustained. To sanction such undefined discretionary powers over verdicts, would seriously affect the high and deserved estimate which is placed on that species of trial

We will barely add, to prevent misconception of our opinion, as to the separate assessment of the value of each article of property, that we believe the form of the last entry is, in this respect, sufficiently definite. A reasonable certainty is all that the law requires.

The judgment of the court will be reversed, the cause remanded, and a new writ of inquiry awarded.