Herron v. Hornback

• Decision Date: 31 March 1857
• Citation: 24 Mo. 492
• Parties: HERRON, Respondent, v. HORNBACK, Appellant.
• Court: Missouri Supreme Court

24 Mo. 492

HERRON, Respondent,

v.HORNBACK, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. Where in an action for entering plaintiff's land and cutting down and carrying away his trees, a verdict is rendered in favor of the plaintiff in the following form: “We, the jury, find for the plaintiff forty-three dollars and thirty-three cents;” held, that it is error to render judgment, under section first of the act concerning certain trespass (R. C. 1845, p. 1068), for treble the sum so found in favor of plaintiff.

Appeal from Ralls Circuit Court.

Lamb & Lakenan, for appellant.

RYLAND, Judge, delivered the opinion of the court.

The question in this case involves the propriety of the judgment of the Circuit Court for treble the damages found for the plaintiff by the verdict of the jury. The action was for trespass committed by entering on the lands of the plaintiff, cutting down trees, splitting them into rails and boards, taking and carrying away the rails and boards; also for splitting trees, which had been cut down by other persons, into rails, and carrying away the rails. The defendant answered, admitting that he had cut down some seven or eight trees and carried them away; but denied cutting any more. There was a trial by jury. None of the evidence is preserved, and none of the instructions saved. The jury returned the following verdict: “We, the jury, find for the plaintiff forty-three dollars and thirty-three cents.” The plaintiff's counsel thereupon filed his motion for treble the damages found by the jury: the court sustained this motion; gave judgment for treble damages, and to this action of the court the defendant excepted, filed his bill of exceptions, and brings the case here by appeal.

This case comes fully within the decisions of this court heretofore made in the case of Ewing et al. v. Leaton et al., in 17 Mo. 465, and the case of Labeaume v. Woolfolk, 18 Mo. 514; and to the opinions in these cases we refer as deciding this. The verdict ought to have been for the value of the property injured, and then judgment for treble that value. In a petition like the present a general verdict, without specifying the value of the injured property, will not warrant the court below in giving judgment for treble the damages found. The judgment in this case must be reversed and the judgment entered here for the amount of the verdict only, viz: $44.33. The appellant to recover his costs in this court.

Judge Scott concurring; Judge Leonard absent.