Cates v. Nickell

• Decision Date: 31 January 1868
• Citation: 42 Mo. 169
• Parties: NEWELL CATES, ADM'R OF WILLIAM SNADON, Respondent, v. THOMAS NICKELL, Appellant.
• Court: Missouri Supreme Court

42 Mo. 169

NEWELL CATES, ADM'R OF WILLIAM SNADON, Respondent,

v.THOMAS NICKELL, Appellant.

Supreme Court of Missouri.

January Term, 1868.

Appeal from Dade Circuit Court.

T. A. Sherwood, for appellant.

I. The verdict did not support the judgment, and was not in conformity to the provisions of the statute in such cases. (Gen. Stat. 1865, pp. 674-5, §§ 21, 26; Dysart's Adm'r v. Austin et al., 36 Mo. 47, and cases cited; Branstetter v. Rives et al., 34 Mo. 318, and cases there cited.)

Lindenbower, and Bray, for respondent.

I. If a judgment upon a promissory note be irregular for lack of assessment of plaintiff's damage by the jury, yet it is such an irregularity or omission as does not prejudice the defendant, and will not be sufficient to reverse the case. (Gen. Stat. 1865, p. 671, § 19; 15 Mo. 115.)

FAGG, Judge, delivered the opinion of the court

This action was instituted, in the Dade Circuit Court, upon a promissory note. The answer simply denied the execution of the note, and, the cause being submitted to a jury, the following verdict was rendered: “We, the jury, find the issue in favor of the plaintiff.” The jury being thereupon discharged, the court proceeded to ascertain the amount then due upon the note, including principal and interest, and rendered judgment for the same. Upon an appeal to the District Court, this judgment was affirmed, and the defendant, Nickell, has again taken an appeal to this court.

The sufficiency of the verdict to authorize the judgment of the Circuit Court is the only question presented by the record. Gen. Stat. 1865, chap. 169, §§ 21 and 26, contain the provisions by which this question must be determined. The first directs that “in every issue for the recovery of money only, or specific real or personal property, the jury shall render a general verdict.” The next provides as follows: “When a verdict shall be found for the plaintiff, in an action for the recovery of money only, the jury shall also assess the amount of the recovery,” etc. It is plain that the jury must make a finding upon all the issues presented by the pleadings. All the facts necessary to support the judgment must be found, and the court is not authorized to invade the province of the jury in this respect.

The action here is for the recovery of money only, and the general verdict finding the issue for the plaintiff was only a part of the duty absolutely imposed by the statute upon the jury.

The assessment of the amount of the recovery to which the...