It was error for the court to amend a judgment in trover, based on a verdict finding a part of the property to belong to the defendant, so as to transform it into a money judgment in the defendant's favor as to the property so found for him, when the plaintiff's petition did not allege the value of the property found for the defendant and the jury made no finding as to its value.
DECIDED JULY 12, 1945.
C. R. Betts instituted an action of trover against Y. E. Mathews in which he sought to recover certain personal property consisting of household furniture and machinery. Many items of each kind of property were described in the petition, and it was alleged that the value of all of the items in the aggregate was $1800. The items were not separately valued. The jury returned the following verdict: "We, the jury, find in favor of the defendant all furniture itemized, giving the plaintiff all machinery listed." The following judgment was entered on the verdict: "Whereupon, it is considered, ordered, and adjudged that the plaintiff, C. R. Betts, do have and recover of the defendant, Y. E. Mathews, the property described as having been found for the plaintiff in the verdict rendered at this term of court; and it is further ordered and adjudged that the plaintiff do have and recover, for the use of the officers of the court, the costs of this suit. This September 7th, 1944." Before the trial, the plaintiff filed a bond and took possession of all *Page 679
of the property sued for. The case was tried at the September, 1944, term of Tift superior court. At the March, 1945, term, the defendant filed a motion to amend the judgment above set forth on the ground that it was taken by inadvertence and did not conform to the verdict and record. The plaintiff demurred to the petition to amend the judgment on the following grounds: "1. Because it is impossible to tell from said motion wherein or how the judgment does not conform to the verdict and record in said case. 2. Because the verdict upon which said judgment is based is not set out in said motion, neither is it attached thereto as an exhibit, and therefore it is impossible to tell from said motion whether the judgment taken conforms to said verdict or not. 3. Because the motion fails to set forth sufficient facts to authorize the amending of said judgment as prayed for. 4. Because it affirmatively appears from the recitals contained in the proposed amended judgment that such amendment would not be based on the record in said case, but that the alleged value of the property, which the defendant claims the jury awarded to him can be determined only by parol evidence, and there is nothing in the pleadings, the verdict of the jury, or the record, by which this value could be determined, and the court would not be authorized to amend the judgment except from facts which are apparent on the record in said case. 5. Because the movant in said motion is attempting to go beyond the record in said case and amend said judgment on facts which will have to be proved by parol testimony." He also filed a response, the substance of which was the same as the demurrer. The court passed the following order on the demurrer: "The within demurrer being duly considered is hereby overruled on all grounds stated therein. So ordered on March 31st, 1945, and entered nunc pro tunc this April 14, 1945." On March 31, 1945, the court entered the following judgment: "In the above-stated case the original judgment heretofore rendered on the 7th day of September, 1944, is hereby amended by adding thereto the following: The jury having returned a verdict in favor of the plaintiff for one band saw, jointer, shaper, morticing attachment, sanding disk, shaft hangers, two wood clamps, bunch of rip saws — all mounts on one frame, Nove stationary engine belts and belting; and having returned a verdict in favor of the defendant for all of the other property described in the plaintiff's petition, and under the evidence *Page 680
of the plaintiff the above described property, title to which the jury found in him, was of the value of $600, and the plaintiff's petition having alleged that the total property described therein was of the value of $1800; and it further appearing to the court that the plaintiff entered into a bond and took possession of all the property described in such petition, which bond was signed by the plaintiff and Jack Willis and M. V. Griner, which bond was in the terms and provisions of law: It is, therefore, hereby considered, ordered, and adjudged that the defendant do have and recover of and against the plaintiff C. R. Betts and his bondsmen, Jack Willis and M. V. Griner, the sum of $1200; said judgment, except the costs, may be discharged upon the delivery of the property which the jury found belonged to the defendant within ten days from this date, provided such property is in the same shape and condition as when such suit was filed. This 31st day of March, 1945." The plaintiff excepts to the overruling of his demurrer and to the judgment amending the original judgment.
The court erred in overruling the demurrer to the petition to amend the judgment and in amending it for two reasons. The Code, § 107-209, provides: "When the plaintiff in a trover suit has replevied the property and, on the trial of the case, fails to recover or dismisses his petition, the defendant, instead of suing on the replevy bond, may recover the property and its hire, or the sworn value placed upon the property in the petition." It nowhere appears in this case that the defendant elected to take a verdict for the sworn value placed upon the property in the petition. The verdict was for the defendant for some of the property, and the presumption is that he so elected to take the property. If he did not so elect before judgment he waived his right by not speaking and having the verdict corrected before the jury dispersed. In the second place, even if the defendant had elected to take a money verdict for the value alleged by the plaintiff, he would not be entitled to it for the reason that in his sworn petition the plaintiff did not allege the separate value of the property recovered by the defendant and the jury made no finding as to its value. Authority for the converse of this proposition may be found in Gatlin v.Mathews,16Ga. App.645 (85S.E.953). The Code *Page 681
section, above cited, does not provide that a verdict may be taken for the value of the property as testified to by the plaintiff, especially by implication, as here. The court therefore went outside of the record for a fact upon which the amendment order is based, to wit, the value of the property recovered by the defendant. The court was not authorized to conclude that, because the plaintiff alleged that all of the property was worth $1800, and because the plaintiff swore that the property he recovered was worth $600, the petition alleged that the property recovered by the plaintiff was worth $1200; because the jury was not required to so find, and did not so find. If the jury had found the property recovered by the plaintiff to be $600, a different question would be presented. The amended judgment does not conform to the verdict, and the court erred in overruling the demurrer to the petition to amend and in amending the judgment. As to the authority of the court to amend judgments, see the Code, § 110-311; Crummey v. Crummey,152Ga.627 (110S.E.891); Rice v. Farmers Bank ofBowman,149Ga.530 (101S.E.178); Jones v. Whitehead,167Ga.848 (146S.E.768), and cit.
Judgment reversed. Sutton, P. J., and Parker, J., concur.