Doe ex dem. Rowe v. Goetchius

• Decision Date: 13 February 1913
• Citation: 61 So. 330,180 Ala. 381
• Parties: DOE ex dem. ROWE v. GOETCHIUS.
• Court: Alabama Supreme Court

61 So. 330

180 Ala. 381

DOE ex dem. ROWE v. GOETCHIUS.

Supreme Court of Alabama

February 13, 1913

Dowdell C.J., and McClellan and Sayre, JJ., dissenting.

Appeal from Circuit Court, Macon County; S.L. Brewer, Judge.

Ejectment by John Doe ex dem. Cordelia Rowe against Mary R. Goetchius. Judgment for defendant, and plaintiff appeals. Reversed.

O.S Lewis, of Tuskegee, and A.A. Evans, of Montgomery, for appellant.

Merritt & Riley, of Tuskegee, for appellee.

MAYFIELD J.

This action was common-law ejectment. The land sought to be recovered was a right-angled triangle out of the south half of the north half of section 28, township 16, range 25. The right angle was at the southeast corner of said subdivision. The original complaint claimed 80 acres described (in the figure) as the right-angled triangle A, B, C. The defendant disclaimed as to the triangle B, C, D, and pleaded "not guilty" as to the triangle A, B, D.

(Image Omitted)

The plaintiff then amended his complaint so as to sue for only the triangle A, B, E, as to which the defendant pleaded "not guilty." So the only issue triable was as to the title, possession, etc., of this triangle A, B, E.

There are recitals in the record tending to show that the plea of disclaimer was refiled to the amended complaint; but there is no claim that any other plea of disclaimer was ever filed. The plea of disclaimer was of course not apt, and could not be availing as to the amended complaint because it related to and described no part of the lands sued for in the amended complaint, and as to which the trial was had. The land described in the plea of disclaimer did not even coincide with or relate to land adjacent to that sued for. There was a triangle between that and the land claimed in the amended complaint. Moreover, the judgment conclusively shows that issue was joined alone on the plea of "not guilty." The verdict of the jury was: "We, the jury, find for the defendant for the land lying south of fence row." The plaintiff objected to this verdict and moved the court to set it aside and grant a new trial upon the ground that it was vague, indefinite, and uncertain, and would not support a judgment. The court overruled the motion and entered upon the verdict a judgment for the defendant for the costs of the case. This was error. There was nothing in the pleadings to support such a verdict. There was not a word in the complaint, original or amended, as to a "fence row." It is true that the plea of disclaimer above referred to did describe the line B, C, as a fence row, and that there was some proof as to a fence row; but that fence row was not on the land sued for, and as to which the trial was had. It is likewise true that the land sued for was south of this fence row; but that fact no more described the land sued for than it did any other land south of the fence row. In fact, the land immediately south of the fence row was not sued for. Suppose the judgment had been for the plaintiff instead of the defendant, could the plaintiff be put into possession of land not sued for? Certainly not. No more should this judgment have been entered for the defendant.

The trial court seems to have fallen into error in supposing that the land upon which this fence row was located, and that immediately north and south thereof, was in litigation which, as we have shown, was not the fact. This might have been true if the trial had been had on the original complaint, and the plea of disclaimer properly filed thereto; but the complaint was amended by striking out all of the land north of the fence row, and a considerably triangle immediately south thereof. It follows that the verdict should have been arrested and a venire de novo awarded. If the original complaint and plea of disclaimer could be looked to, the verdict would still be insufficient, because it would then fail to find at all as to the lands north of the fence row. The law and the practice in such cases is well settled to the effect that this was reversible error.

A verdict in literature is a true saying. In law it is the answer of the jury, given to the court concerning the matters of fact submitted to them under the issues made by the pleadings, and as applied to the legal principles laid down by the court for their guidance. Davis v. Township of Delaware, 41 N.J.Law, 55; Bonham v. Bishop, 23 S.C. 96.

Mr. Gould says: "Judgment is sometimes arrested, when the pleadings are good, for faults in the verdict. If the verdict vary substantially from the issue (as if, instead of finding the matter in issue either way, the jury should find something foreign to it), judgment must be arrested, because the finding does not ascertain the matter of fact in issue, and cannot therefore show for which party judgment ought to be given. The rule is the same when the verdict finds only a part of the matter in issue, omitting to find, either way, another material part. For it is the duty of the jury to ascertain, and that of the court to give judgment upon, all the material facts put in issue by the pleadings. But a verdict finding the whole substance of the issue is good, although it be silent as to what is immaterial, since the latter cannot affect the merits of the controversy." Gould on Pleading, 521.

The Supreme Court of the United States has expressed the same rule as follows: "A verdict is bad if it varies from the issue in a substantial matter, or if it finds only a part of that which is in issue. The reason of the rule is obvious. It results from the nature and the end of the pleading. Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue; and although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court, or to the appellate court, that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be rendered upon the verdict. It is true that if the jury find the issue, and something more, the latter part of the finding will be rejected as surplusage; but this rule does not apply to a case where the facts found in the verdict are substantially variant from those which are in issue." Patterson v. United States, 2 Wheat. 221, 4 L.Ed. 224.

It is said that, because the verdict is for the defendant, it is sufficient. This is not true, for the reason that it is no more responsive to the issue or question propounded to the jury than if it had been for the plaintiff. Whether or not it is responsive can in no wise or in any degree be made to depend upon the question for whom it is rendered. Whether an answer is responsive to the question propounded does not at all depend upon whether it be affirmative or negative, nor upon whom it is intended to benefit.

Suppose a witness be asked if the defendant entered upon and holds possession of lot A, and he answer as to lot B, the answer is not made responsive because he says the defendant did not enter upon or hold lot B. The answer is then just as much irresponsive as if he had said that the defendant did enter upon and hold lot B. It is very true that a verdict for the defendant need not be as certain as if it were for the plaintiff, because the judgment does not then have to be executed in the same manner as if for ...