Montgomery v. Maynard , 33 Vt. 450 ( 1860 )

Poland, J.

I. The defendants’ first exception is to the allowance of the amendment of the plaintiff’s declaration.

The original declaration, in the ordinary form of general assumpsit, was clearly inappropriate, and insufficient to enable the plaintiff to recover under it, for a claim which accrued against the wife before marriage.

But notwithstanding this, the defendants made no objection to the plaintiff’s evidence, and the same was all introduced, and the defendants proceeded with their evidence in defence of the plaintiff’s claim, upon the merits.

After the evidence was closed upon both sides, the plaintiff moved to amend his declaration so as to make it conform to the claim which his evidence tended to establish; and the court allowed him to do so, against the defendants’ objection.

The amendment was one coming clearly within, the power of the court to grant, by the rule laid down in Carpenter v. Gookin, 2 Vt. 495, and numerous cases following that in our reports. The amendment being of the class which the court had power to allow, the exercise of the power must rest entirely in the discretion of the court, and cannot be revised on exceptions ; and if we were satisfied that the defendants were not allowed a reasonable opportunity to answer it by new pleadings or new evidence, we could scarcely say there was error in law. But there appears to be no ground for complaint in this respect.

The defendants did not claim that they had any other defence to the plaintiff’s claim, or evidence in support of that defence, except what they had already shown; they asked no further delay to meet the plaintiff’s amended declaration by new pleadings or evidence, and did not choose to avail themselves of the leave given to amend their own pleadings.

Under these circumstances, we do not see the slightest ground of complaint on the part of the defendants to the action of the county court. The defendants could not well complain of surprise at the plaintiff’s evidence under his first declaration, for they allowed it to come in without objection. It would seem that the defendants were lying 'by with a view of some ultimate advantage from the defect in the plaintiff’s declaration if the result of the trial on the merits should be unfavorable, and the action of the court in depriving them of the opportunity of upsetting the verdict after going to trial on the merits, was eminently just.

The objection that the amended count was not filed until a subsequent day in the term, and after the verdict, we do not find sustained in fact. From the record we think it clearly appears that it was filed on the trial, that is, it was put into the case, and if the clerk did not in fact put on a certificate of its being filed until some days after, it is of no importance.

II. The next question is in relation to the propriety of the amendment of the verdict.

It seems that by a mistake of the foreman of the jury, the verdict when returned, appeared to be a verdict in favor of the defendants instead of the plaintiff, and the error was not discovered until the jury separated; but they appear to have been sensible that something was wrong about the verdict, and all the jurors except one returned immediately to the jury room, but the one went to the hotel.

It is not now questioned but that the court, upon proper evidence, might have corrected this error' in the verdict, without again sending the jury out, or using them at all, except to inquire of them how they intended the verdict. But upon its being suggested to the court that this error existed in the verdict, the court called the jury to be again brought together, and stated to them what was claimed as to the error in the verdict, and directed them to go out and correct the verdict, if not already as they intended it. The jury went out and corrected the verdict, and returned it to the court.

The defendants treat this as if the case had again been committed to the jury to re-examine the evidence, and form another judgment upon it, and that, as they had separated, and one of them had held conversation about the ease with a third person, the new verdict ought to be set aside. If this was the true view of the transaction, we should incline to the same view. But it does not appear to us that the jury were sent out again, with a view to any other action than to see if they had made a clerical error in their verdict, and if so, to correct it.

The court would clearly have been justified in allowing the jury to correct the verdict in open court, or in themselves correcting it, by having the assent of the jury, and how the substance of the matter is changed by sending the jury out of court to make the correction, and then assent to it in court, is not very apparent.

The court having power to amend the verdict, the particular mode of doing it rested in their discretion, and forms no ground of error, at least when there appears no ground to suspect any unfairness or injury by the course pursued.

III. As to the motion in arrest.

The first ground of the motion is, that as the original declaration was not struck out, but still continued to form one count, and a defective one, and the verdict was general, the verdict should be set aside. But the whole record clearly shows that the verdict was in no part founded upon the defective count.

The new count was added because all the plaintiff’s claim was of a character that could not be recovered under the first declaration, and this negates all inference that some part of the recovery was founded on the bad count. This, therefore, was no ground to arrest the judgment. Whitcomb v. Walcott, 21 Vt; Camp v. Barker.

The other ground of arrest is, that the plaintiff’s application in offset to defendants’ plea in offset, was defective, and that the plaintiff had no leave to amend it.

The answer to this objection is quite the same in principle as to the other ground.

It appears by the whole record, that no evidence was offered to sustain any claim under this replication, and therefore the verdict could not have been founded upon it, even in part, and, therefore, is no ground of arrest, even if defective.

This disposes of all the defendants’ exceptions, and the judgment is affirmed.