Smith v. Phelps , 7 Wis. 211 ( 1859 )

By the Court,

Cole, J.

Although the record in this case is very meagre, yet it sufficiently discloses, that several errors intervened in the court below, which must cause a reversal of the judgment.

It appears that this action was commenced under the code in the circuit court of Marquette county, for the recovery of certain personal property belonging to the plaintiff, which it ■was alleged had been unjustly taken and was unjustly detained by the defendant. In his complaint the plaintiff alleged the value of'the property at three hundred and sixty-eight dollars and ninety-seven cents, and prayed judgment for the value thereof, and damages for its detention, and also that the property be re-delivered to him. In his answer the defendant denied that he unjustly took, and unjustly detained the property mentioned in the complaint, but alleged that he took the same as deputy sheriff, by virtue of a writ of attachment duly issued, in favor of one Bissell, and against the goods, chattels, lands and tenements of William H. Cottrell, who was alleged to be the sole owner of the property at the time of the taking thereof. Upon the answer an issue was made up, and the parties went to trial before a jury. The jury returned a verdict in substance that they had decided in favor of the plaintiff, and had awarded the amount of property at four hundred and seventy dollars, and damage for the detention at one cent. On this verdict judgment was rendered in favor of the plaintiff for four hundred and seventy dollars and costs of suit.

We consider the verdict in this cause so defective and uncertain that no judgment should have been rendered upon it. One of the questions put in issue by the pleadings, was the title to the property, and this the jury do not pass upon one way or the other. Another was whether the plaintiff was entitled to the possession of the property. It is a general principle that the .verdict must comprehend and pass upon, all the issues submitted to the jury in the cause, otherwise the judgment founded upon it will be reversed. So elementary a principle as this needs not the citation of authorities to support it.

Again, if the verdict had been sufficient, the judgment rendered was not in accordance with § 187 of the code. That section requires in an action to recover the possession of personal property, that the judgment for the plaintiff he for the possession or for the recovery of the possession, or the value thereof in case a delivery cannot he had, and of damages for the detention. The judgment taken must be in the alternative, for the return of the property, or for the value thereof as assessed, in case a return cannot he had. Dwight vs. Enos & Jones, 3 Selden, 490. A still further objection to the judgment is that it exceeds the amount claimed in the complaint.

For these reasons the judgment of the circuit court is reversed and a new trial ordered.