Park v. Holmes

Opinion by

Mb.. Justice Stebbett,

This action of replevin was brought by plaintiff against the defendants for property distrained by the latter for rent alleged to be in arrear, etc. The writ was duly executed and property delivered to plaintiff. She was not tenant of the demised premises, but claimed the property distrained as her own and not liable to distress. The issue formed by the pleadings was tried, and on Jan. 27,1891, the following verdict was rendered: “ The jury find that the defendant is entitled to $561 rent in arrear, and that the value of the goods liable to distress for said rent is $300. As to the rest of the goods they find for the plaintiff.” The next entry'on the record is: “Feb. 2, 1891, jury fee paid (by deft) eo die judgment.” On July 10, 1891, execution was issued against plaintiff for $561, interest and costs, and levied. A rule then taken to set aside the execution, etc., was afterwards discharged by the court: whereupon the plaintiff took this appeal, and assigned as error the refusal of the court to make the rule absolute.

If the verdict was insufficient to warrant the entry of a proper judgment, or if the execution was not warranted by the alleged judgment, the plaintiff was entitled to the relief demanded.

While the verdict is informal, in that it does not, in terms, find for the defendant, it contains sufficient to have justified the court in molding it into proper form: Fisher v. Keen, 1 Watts, 262. The jury found the amount of rent to which the landlord, defendant, was entitled, the value of the goods liable to distress therefor, and, as to the residue of the goods, they found for the plaintiff. It may be inferred that they intended to find in favor of the defendant for $300, the value of the goods which were liable to distress, but they did not express that intention in words. Without attempting to mold the verdict into proper form, a judgment so called, still more informal and uncertain, was -entered. Aside from the date, the only operative entry on the record is the single word “judgment.” The record does not inform us for how much, if anything, or in whose favor, judgment was intended to be entered. With such an ambiguous record before him, it is not surprising that the prothonotaiy issued the execution for the larger of the two sums named in the verdict. When that fact was brought to the attention of the court, a correction was noted, not on the proper docket, but on the back of the fieri facias. The record, as sent into this court, shows an execution for $561, interest and costs, and subsequently a capias ad satisfaciendum both issued against the plaintiff, presumably on the single word “ judgment.”

No court in this country, or elsewhere, has gone to a greater length than the courts of this state in sanctioning extreme brevity in the entry and record of judgments; but when we are asked to sustain a so-called judgment, which is silent as to the sum for which, and the person or persons against whom it was intended to be entered, it is time to draw the line.

It has been suggested that the verdict may be considered as properly molded and judgment accordingly treated as amended here, and thus the execution may be sustained. This might possibly be done; but, in view of the trouble and expense to which plaintiff has been subjected, such a course would be unfair to her. Moreover, it would be tantamount to amending the record of the common pleas — a matter which, if necessary to be done, more appropriately belongs to that court. It may be that, with its better knowledge of circumstances not disclosed by the record, it would refuse to sanction any amendment.

For reasons above suggested, we think there was error in refusing to set aside the execution. The specifications of error are sustained.

Order of court, discharging plaintiff’s rule to show cause, reversed, and it is now ordered that said rule be made absolute, costs of execution, and of all subsequent proceedings, including costs in this court, to be paid by appellees.