Robertson v. McMillan , 1 Dallam 564 ( 1843 )

OCHILTREE,

—Andrew Justice. McMillan, the defendant in error, sued Randall Robertson for possession and damages for the occupation of a certain tract of land situate in the county of Robertson.

An issue was made to the country. At the October term, 1840, a jury of twelve men, whose names are set forth in the record, came and were sworn and charged to try the issue joined, viz: James Schofield, Thomas Eaton, J. L. McMurray, R. H. Porter, Robt. M. Christian, Harrison York, S. B. Keloc, E. Donelson, Charles Sevier, James Hudson, J. C. McCristan, George W. Shirer. The jury, after the case had in due form been submitted to them, returned into court this verdict: “We the jury find the issue joined in favor of the plaintiff, and assess his damages to one dollar. (Signed) S. B. Kellough, Foreman.”

Immediately in connection with which verdict is this judgment of the court: “Therefore it is considered by the court that the plaintiff recover his costs in this behalf expended, and the defendant,” etc.

On the 10th September, 1841, the defendant sued out a writ of error in which was made the following assignments:

1. That from an inspection of the record there does not appear to have been a lawful jury impaneled to try the issue in the case.

2. The jury by their verdict do not find that the title to the premises described in said McMillan’s petition is in said plaintiff, but find only that his damages are one dollar; and that the judgment rendered thereon by the court is not according to the verdict, because the court awards only that the plaintiff do recover his costs, and gives no judgment for damages.

3. Assigns error in the execution which issued thereon, etc.

4. Assignment also relates to a proceeding subsequent to the judgment.

5. Assignment is, that the petitioner’s counsel failed to except to an improper charge of the presiding judge, and asks the revising court to give him the benefit of the error now.

In the examination of this case we will confine ourselves to the judgment and the matters preceding. With the execution, or writ of habere facias possessionem, we have nothing to do. If those proceedings, or either of them, were erroneous, the party agrieved had his remedy in the court below, from whose final judgment only the right of an appeal lies to this court. We will therefore proceed to a brief examination of the errors assigned, which are properly before us.

1. “From an inspection of the record, there does not appear to have been a lawful jury impaneled to try the issue in the case.” We were more particularly informed by the argument as to what was considered by the plaintiff in error the objection to the jury than by the assignment itself. Indeed, from an examination of the record we find nothing approaching error in the impaneling of the jury, for it appears that there were twelve good and lawful men who came and were sworn to try the issue joined between the parties, etc. It is contended, however, that the name of the foreman who returned the verdict of the jury into court does not appear on the lost of jurors. In the list of names we find S. B. Keloc, and the name signed to the verdict is S. B. Kellough. Without following the learned counsel for the defendant in error in his ingenious argument upon the idioms of different nations, and the arbitrary pronunciation of those proteus letters, “ough,” we will say that from all the concurrent circumstances, we are irresistibly led to the conclusion that S. B. Keloc and 8. B. Kellough are one and the same persons.

We hardly think that the presiding judge would have permitted a substitute to have taken the prominent position of foreman of the jury, or that the astute counsel for the defendant below would have failed to have observed it and predicated a motion for a new trial or in arrest of judgment, for an error so glaring. We think it was a clerical error, and nothing more.

2. “The jury by their verdict do not find that the title to the premises described in said McMillan’s petition is in said plaintiff, but find only that his damages are one dollar, and that the judgment rendered thereon by the court is not according to the verdict, because the court awards only that the plaintiff do recover his costs, and gives no judgment for damages.”

The verdict of the jury in this case is not a mere finding for the plaintiff; it goes farther: “We the jury find the issue joined for the plaintiff, and assess his damages at one dollar.” Here is a manifest reference by the jury to the pleadings. What was the issue joined? The right of possession to the land, described in the plaintiff’s petition and defendant’s answer, as being the subject of dispute. A verdict, it is true, might have been rendered by the jury more descriptive and more technical; yet we believe that the manifest intention of the jury was to find that the land in contest was the property of the plaintiff, and we will not disturb it. It is considered by the court here, that inasmuch as the judgment of the court below does not respond to the verdict of the jury, the same be reversed, and that this court will proceed to render such judgment thereon as should have been rendered in the court below. It is therefore considered by the court, that the plaintiff in the court below do recover of the defendant below the premises, together with one dollar for his damages, and all his costs in this behalf expended; and that the proper writs issue to carry out this'judgment.

Reversed and rendered.