Another v. Children

• Decision Date: 28 February 1855
• Docket Number: No. 65.,65.
• Citation: 17 Ga. 361
• Parties: Willis Wood and another, plaintiffs in error. vs. Milly McGuire's Children, defendants.
• Court: Georgia Supreme Court

17 Ga. 361

Willis Wood and another, plaintiffs in error. vs. Milly McGuire's Children, defendants.

No. 65.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1855.

Ejectment, in Bibb Superior Court. Decision by Judge Hardeman.

This was an action for land, brought by Lovick N. McGuire, George M. McDonald, in right of his wife, Ora F. McDonald, Mary Elizabeth McGuire, Daniel J. McGuire and Jemima K. McGuire, the children of Milly McGuire, against Willis Wood and William Johnston.

The Jury returned the following verdict: "We, the Jury; find in favor of the plaintiffs, Mary Elizabeth McGuire, Geo. M. McDonald, in right of his wife, Ora F. McDonald, Jemim K. McGuire, Daniel J. McGuire, to the undivided four fifths of the premises in dispute, and two hundred and fifty dollars, with costs of suit.

The defendants moved to set aside this verdict, on the ground, that it did not decide the issue as to one of the plaintiffs, to-wit: Lovick N. McGuire, which motion, on argument was over-ruled by the Court; and this decision is assigned as error.

Stubbs & Hill, for plaintiffs in error.

Lanier & Anderson; Poe, for defendants in error.

By the Court.—Lumpkin, J., delivering the opinion.

Lovick McGuire was a party plaintiff in the suit. It was admitted, and the proof showed that he had conveyed his interest to the defendants. The Court charged the Jury, that they were bound to find against him. They were certainly bound to find, either for or against him. And failing to do either, the verdict and judgment are imperfect, and should have been vacated.

The general rule undoubtedly is, that the verdict must comprehend the whole issue or issues submitted to the Jury in the particular cause; otherwise, the judgment founded on it should be reversed. (1 Arch. Pr. 190. Patterson vs. The United States. 2 Wheat, 225. Miller vs. Tretts, 1 Ld. Raym. 324.)

In Holmes vs. Wood, (6 Mass. R. 1,) the Supreme Court of Massachusetts held, that if the issue joined be material, theverdict ought to find the issue either for or against the party tendering it.

Indeed, the Circuit Judge recognized the rule, but was of the opinion, that the point in issue could be concluded from the finding of the Jury in this case; that the Court could work the verdict into form and make it serve. If this could be done the verdict should stand; and every reasonable construction should be adopted for this purpose. (2 Burrow, 693. 14 Johns. 84. 1 Root, 321.)

In Kerr vs. Hartshorne, (4 Yeates, 293,) Chief Justice Tilghman, very properly limits the authority of the Court to cases where the Jury have expressed their meaning in an informal manner, and says the Court has no power to supply substantial omissions.

But the difficulty here is, not that the Jury have expressed their meaning in an informal manner, but they have failed to express any opinion at all as to one of the parties. True, they have not found for Lovick McGuire; but are we authorized to say, that they intended to find against him? How shall the verdict be amended then? For this plaintiff or for the defendants, as to him? The verdict gives no response to this question; and the Court is not at liberty to answer for the Jury. Petrie vs. Hannay, 3 D. & E. 659, and Richardson vs. Mellish, 3 Bingham, 334, are authorities for amending informal verdicts. But here there is nothing whereby an amendment can be made.

Under Jones' Forms, under which this complaint was filed, it may become important that even in ejectments the verdict and judgment should be commensurate with the issue. But as already stated, they should be so in all cases, independent of the Act of 1847.

AMENDMENT OF VERDICT. "We recognize the rule insisted upon by counsel for plaintiff in error, that the court could not amend a verdict after the jury had been discharged from the case, as was held in 8 Ga. 20; 17 Ib. 362. and other authorities cited." Moses, trustee, v. Eagle and Phenix Mfg. Co., 68 Ga. 244.

"Where a jury were allowed by consent to disperse after finding: a verdict, and the foreman was allowed to return it into court on the next morning, if, upon its return, it was found not to have been signed, there was no error in directing the foreman to sign it. The failure to sign it amounted at most to a mere informality, which was properly amended. IT Ga. 361; Code of 1895, 85336; 24 Ga. 72; 14 Id. 18." Avera v. Tool, McGarra & Toudee, 74 Ga.. 398 (3).

"While a verdict may be amended in mere matter of form after the jury have dispersed, yet after it has been received sad recorded, and the jury have dispersed, it can not be amended in matter of substance, either by what the jurors say they intended to find or otherwise." Shelton v. O'Brien, 76 Ga. 820. 821. And see 36 Ga. 584.

VERDICT. "Every favorable construction is to be adopted in favor of a...