Layman, et als v. Hendrix

Layman, et als v. Hendrix. 1. If the verdict of (he jury is copied by the clerk, making out the transcript of the record, and is different from that recited in the judgment entry, it cannot be noticed by an appellate court; the presumption is, that the jury corrected the verdict and returned the one recited by the judgment entry. 2. If the court directs the judgment entry, different from, and unauthorized by the verdict rendered; the proper mode to present the point for revision is, to except to the action of the court, if the fact does not otherwise appear in the record. 3. In an action against several defendants, for a joint trespass, the plaintiff is entitled to demand a joint verdict for damages against all who are- ascertained to be guilty; and it would be erroneous to instruct a jury, that they might, in such a case, sever the damages and apportion them among the several defendants. 4. If a jury return a joint verdict of guilty, against more defendants than one, in an action of trespass, and assess several damages, it is optional with the plaintiff to set aside the verdict, and have a venire de novo ; or to cure the defect, by entering a nolle prosequi against all the defendants, but the one whom he may elect to charge with the damages assessed against him alone. Writ of error to the Circuit Court of Benton County. ACTION of trespass vi et armis. Demurrer to the decíaration. Demurrer overruled. Each defendant then severally-pleaded not guilty. The pleadings need not be stated, as no opinion is given by the court, on the assignment of error respecting the demurrer. In the transcript of the case, and immediately preceding the judgment, the following entry appears : — “ this cause came on to be tried, and the defendants’ demurrer to the plaintiff’s declaration being overruled, they pleaded as follows, — • each defendant, for himself, pleads not guilty ; upon the back of which pleas, is the verdict of the jury, in the words and figures following, viz : — we, the jury, find in behalf of the plaintiff, and fine Wesley Short $100, George Layman $300, Daniel Layman $300, Samuel Whip $300. John C. McGehee. foreman.” The judgment entry is as follows: — “this day came the parties, by their attornies, and thereupon the defendants’ counsel demurred to the plaintiff’s declaration, and argument being thereupon had, and the matters of law arising on said demurrer, being fully understood by the court ; it is, therefore, considered by the court, that the said demurrer be overruled ; and the said defendants, by leave of the court, plead, each for himself, separately, the general issue of not guilty ; and thereupn came a jury,” etc. etc. “ who, upon their oaths, do say, they find the defendants guilty of the trespass in the said plaintiff’s declaration mentioned, and they find for the plaintiff, the sum of one thousand dollars damages, to be levied in manner following, to wit : three hundred dollars of said damages, to be levied of Samuel Whip ; and three hundred dollars of said damages, to be levied of Daniel Layman ; and three hundred dollars of said damages, to be levied of George Layman, and the remaining sum of one hundred dollars of the said damages, to be levied of Wesley Short.” Then follows a joint judgment for one thousand dollars, against all the defendants, to be levied according to the finding of the jury. The defendants assign for error— 1. The overruling of the demurrer. 2. The changing the verdict of the jury. •3. The judgment rendered by the court. William B. Martin, for the plaintiffs in error. Chilton, contra. [MAJORITY — GOLDTHWAITE, J.] GOLDTHWAITE, J. — As the attention of the court has not been directed to the supposed defects of the declaration, we have not deemed it important to be examined. The error, which is supposed to arise out of the change made in the verdict, cannot be available to the plaintiffs in error, because, it is evident, that the first entry is the mere recital of the clerk, of the effect of certain papers filed in the cause. If iwe are right in this, we may remark, that it is not the duty of a clerk to make a record, but merely to certify the one which exists. The presumption is, that if the verdict recited, was returned, the jury afterwards corrected their finding, and returned •that which is stated in the judgment entry. If, in point of fact, .the first verdict was returned, and not the record, the proper •mode of presenting the point for revision, (if it did not oth•erwise appear on the record,) would be by an exception to the action of the court, in directing the improper entry. The question, which springs out of thejudgment as rendered, is one of very frequent occurrence on the circuit,’ and is not without difficulty; as the cases on this subject are numerous, and not altogether consistent with each other, we propose to consider it, with reference to the principles involved. The trespass is charged to have been joint, and committed by all the defendants ; it must, therefore, be true, that the plaintiff has sustained but one injury. The law contemplates the recovery of damages as a compensation to the injured party, and not as a punishment inflicted on the agressor. The injury which has been sustained in person or character ; the suffering and expenses which have been caused by the illegal and violent acts of the defendants, in a joint trespass, are all proper to be taken into consideration, in the computation of the damages ; and as the plaintiff is entitled to the whole sum thus ascertained, it is evident, that some portion may be lost to him, if the amount can be lawfully apportioned among the several defendants ; because some of them, may not be equally solvent and responsible with others. Again, an apportionment of the damages, is impracticable, according to the well established principles of law, because, as soon as there has been one satisfaction for a joint trespass, by any one of the co-trespassers, the remedy is extinct as to all the others. [Buller’s nisiprius, 20.] It is true, the injured party may proceed against the trespassers jointly or severally ; but it has never been supposed that he could have several satisfactions for the same trespass. These views are conclusive, in our opinion, to prove that the apportionment of damages in an action of trespass is unwarranted by law. The plaintiff, in a case like the present, is entitled to demand a joint verdict against all who are ascertained to be guilty of the joint trespass; and it would be erroneous to instruct a jury to sever the damages, and apportion them among the several defendants. If, however, a jury should returna joint verdict of guilty, against more than one defendant, and assess several damages, it is not such an irregularity as will necessarily avoid the verdict; it is optional with the plaintiff to have a venire de novo, or to cure the irregularity, by entering a nolle prosequi against all but one of the defendants, whom he may elect, to charge with the damages assessed by the jury against that defendant. These rules seem to have been settled in the best considered cases which we have examined. In Crane & Hill v. Hemberton [Cro. Jas. 118] to an action of trespass for assault and battery and wounding, one defendant pleaded r.ot guilty as to the wounding, and justified as to the assault and battery, as in self defence ; the other justified the entire trespass as in self defence. The jury found the first guilty of the wounding, and also, the other issue against him, and assessed damages of 20£ ; they found the issue also against the other defendant, and damages of 100=8. Judgment was given in the common pleas, according to the verdict; and the court of King's Bench reversed this judgment, because there ought to have been but one judgment for the damages ; and the plaintiff ought to have elected against whom he would have taken it. A similar conclusion was arrived at in Hill et al. v. Goodchild [5 Burr. 2790.] There, the defendants pleaded jointly, but the damages were severed by the verdict. Lord Mansfield, then considered the question, as to the effect of a joint verdict of guilty on several pleas, as unsettled in the English courts : and declined going beyond the precise question presented by the pleadings of the case then before him. In the case of Mitchell v. Mebank et al. [6 Term Rep. 199,] it was held, that the plaintiff might set aside a verdict, for the irregularity, which assessed several damages against joint trespassers ; and Sergeant Williams in a note in 1 Saunders 207, n. 2, says : that when a jury give a wrong verdict in point of law, the plaintiff may cure the defect, by entering a nolle prosequi before the judgment. As when several persons are jointly charged in an action of assault and battery, who either plead jointly, or sever in their pleas (for it is immaterial which is the case,) if the jury assess several damages, it is wrong, and the judgment will be erroneous. But the plaintiff may cure the defect, by entering a nolle prosequi against all the defendants but one, and taking judgment against him only. -A majority of the court of appeals of Virginia, in Ammonette v. Harris et al. [1 H. & M. 488] considered it as doubtful, wvhether several damages might not be assessed when the defendants severed in their pleas ; but we do not perceive how the act pf the defendant, can deprive the plaintiff of his right to a joint Verdict and judgment against all who are found guilty of the same trespass ; and the well established rule, that only one satisfaction can be had for a joint trespass, [Buller’s nisiprius, 20,] is very persuaive, to show, that the true rule is stated by Sergeant Williams, who declares it to be perfectly immaterial whether the defendants sever or join in their pleas. The verdict in the present case, is for all purposes* the assessment of several damages ; it declares that the plaintiff has sustained damages to the amount of one thousand dollars; which it apportions among the defendants; and directs to be levied of them severally, in specific proportions. This could have been cured as we have already shown, by entering a nolle prosequi as to all but one, and taking judgment against him only, for the sum assessed against him : or the plaintiff could have set aside the verdict for the irregularity, and have had a new trial. Let the judgment of the circuit court be reversed and the cause remanded, when the plaimiil can either set aside the verdict for the irregularity, and have another trial, or he can enter a nolle prosequi as before indicated.