Wheeler v. Jones
| Decision Date | 22 April 1895 |
| Citation | 40 P. 77,16 Mont. 87 |
| Parties | WHEELER et al. v. JONES et al. |
| Court | Montana Supreme Court |
Appeal from district court, Cascade county; C. H. Benton, Judge.
Action by Hayden W. Wheeler and others against W. A. Jones and others. There was a judgment for defendants, and plaintiffs appeal. Affirmed.
Donovan & Lyter, for appellants.
Leslie & Downing, for respondents.
This is an action of replevin. Plaintiffs in their complaint state that they are the owners, and entitled to the possession, of a large amount of jewelry, which they allege defendants to be in the wrongful possession of. All the material allegations of the complaint are denied by the answer. It appears from the record that the sheriff was only able to find in the possession of the defendants a portion of the jewelry claimed by plaintiffs. The articles he did find and take possession of he turned over to the plaintiffs, the defendants failing to give the necessary undertaking to hold possession thereof pending the suit. The case was tried to a jury. The verdict of the jury is as follows: "We, the jury, find for the defendants." This verdict was rendered on the 22d day of March, 1893, at the March term of the district court. On the 23d day of March, 1893, the clerk entered judgment on said verdict in favor of defendants for costs. On the 4th day of April thereafter, and during the March term of the court, on motion of the defendants, without notice to plaintiffs, the court entered a judgment in the case, modifying said judgment entered by the clerk, in effect directing the return of the property which the sheriff had taken from the defendants and delivered to the plaintiffs. On the same day plaintiffs filed a motion to vacate and set aside said amended or modified judgment. This motion, it seems, was permitted to go over without action thereon by the court, to the July term of the court in said year. On the 19th day of July of said year, and during the regular July term of the court, said motion was heard, and by the court sustained, and said modified judgment was vacated, seemingly because it had been entered without notice. Thereafter notice of motion to modify the clerk's judgment was given, and on the 24th day of July, during said July term of the court, the same was heard, counsel for both parties being present, and by the court sustained, and the same amended judgment was entered which had been vacated by the court. To this action of the court the plaintiffs excepted, and appeal from the modified judgment so rendered. The appellants contend that the court had no authority, on the verdict rendered, to enter judgment for the return of the property taken by the sheriff from the defendants, and delivered to the plaintiffs. The contention of the appellants is that, as the verdict did not find for a return of the property, the court had no authority to render judgment for a return thereof. Under our statute (section 277, Code Civ Proc.), a failure to find all the facts that should be found by a jury does not invalidate the verdict. Miles v Edsall, 7 Mont. 185, 14 P. 701. In Sumner v Cook, 12 Kan. 162, a case involving quite all the facts and circumstances disclosed by this record, and where the verdict was exactly like the one in this case, Mr. Justice Brewer, delivering the opinion of the court, says 'ßwo questions are in this case. The action in the district court was one of replevin. The property had been delivered to the plaintiff. The verdict was for the defendants. The judgment entered was that defendants recover their costs. At the same term,...
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