Bradford v. Curlee ( 1867 )

Handy, C. J.,

delivered the opinion of the court.

This action was instituted against Benjamin Bradford and John D. Bradford and against the executors of William IT. Duke, on a bond executed by the Bradfords and Duke to make title to certain lands, to the plaintiff. The declaration averred that, although the plaintiff had paid the purchase-money, the defendants had not made the title; and further, that the plaintiff had by due process of law been evicted of the possession of the land. An answer was filed containing a general denial.

Pending the suit, the death of John D. Bradford was suggested, and his administrator was brought in by sei. fa. and made a party to the suit. Afterwards a judgment was rendered on a verdict for the plaintiff for $4,194.80 damages, assessed to the plaintiff by the jury, to be levied de bonis projyriis as to Benjamin Bradford, and de bonis i/ntestati as to the administrators.

Two grounds of error are relied on by the plaintiffs in error. 1. The misjoinder of the living obligors with the representatives of those who were deceased. 2. That the judgment was in damages, and not for the debt mentioned in the bond sued on.

The first error is cured by the statute of jeofails. Rev. Code, 508, art. 181, and ib. 485, art. 44. Issue was joined by the parties, and a verdict was found without any objection, on the grouñd of the misjoinder of the defendants. Under such circumstances, it is too late to raise the objection after verdict, and it cannot be assigned for error here.

The other assignment is upon mere matter of form. It is true it would have been more technical to render the judgment for the debt mentioned in the bond, to be released on payment of the damages assessed by the jury. In such case, the effective thing would be the judgment for the damages the plaintiff had sustained. When that amount is paid, the judgment in cither case would be satisfied, and it would be an effectual bar to any other action, on the same cause of action, against the defendants; so that the rights .of both parties are as fully protected by the judgment in this form as if it had been entered in the technical form. We think the error assigned is no ground of reversal of the judgment, and we adhere to the rule stated in Downs et at. v. Ladd, 4 How. 40.

Let the judgment be affirmed.