Wines v. State Bank of Hamilton
| Decision Date | 29 March 1899 |
| Docket Number | 2,734 |
| Citation | 53 N.E. 389,22 Ind.App. 114 |
| Parties | WINES ET AL. v. STATE BANK OF HAMILTON |
| Court | Indiana Appellate Court |
From the Howard Circuit Court.
Affirmed.
Gifford & Coleman, Gifford & Nash and Moon & Wolf, for appellant.
R. B Beauchamp and Blacklidge & Shirley, for appellee.
The appellee sued the appellants and John Q. Adams and Harry Ward upon a joint and several promissory note executed by all the defendants, except Harry Ward, payable to the order of said Harry Ward at a certain bank in this State, for $ 833, with interest at six per cent. per annum, with attorney's fees, etc. The complaint showed the indorsement of the note before maturity, for a valuable consideration by the payee to a certain firm not a party to the suit, and by said firm to the appellee. Copies of the indorsements were made exhibits.
It was shown by the complaint that at a certain date specified three persons named each paid the sum of $ 33, which payments were credited on the note; and the complaint alleged that a copy of the note "with the said credits thereon" was filed with and made a part of the complaint as "exhibit A;" and such an exhibit was filed with the complaint. The defendant John Q. Adams, by his guardian ad litem, pleaded infancy. The defendant Ward, payee and indorser, appeared, but made no defense, and he has declined to join in this appeal. The other defendants all filed sworn answers, some in one paragraph denying the execution of the note, others in two paragraphs, one a general denial, and the other a denial of the execution of the note.
The cause was tried by jury, the verdict being as follows omitting the signature: "We, the jury, find for the plaintiff as against all of the defendants except John Q Adams, and assess its damages in the way of principal and interest at the sum of $ 997.51, and attorney's fees in the sum of $ 41.65,--in all $ 1,039.16, less credits on back of note; and we find for the defendant John Q. Adams."
The defendants except John Q. Adams and Harry Ward, moved for a venire de novo, and this motion having been overruled, the same parties moved for a new trial. The court, having overruled this motion, rendered judgment for the appellee against the defendants, except John Q. Adams, for $ 914.36. The overruling of the motion for a venire de novo, and the overruling of the motion for a new trial, are assigned as errors.
It is claimed that the verdict was so defective that a judgment could not be rendered thereon, because of the failure of the jury to specify the amount of the credits to be deducted, designated as "credits on back of note." It will be observed that in rendering judgment the court computed as the amount of such credits and deducted therefor $ 119.80. The three payments credited upon the note, as shown by the complaint, were made on the 26th of June, 1894, and aggregated $ 99, and the verdict was returned on the 14th of October, 1897. No objection was taken to the form or substance of the judgment, and the amount thereof is not questioned, the objection being that there was not furnished sufficient basis for judgment in any amount.
It is a frequently stated rule, that a motion for a venire de novo should be overruled if the verdict be not so defective and uncertain that no judgment can be rendered upon it; and a verdict, however informal, is good, if the court can understand it, and it is not to be set aside unless from necessity. Daniels v. McGinnis, Adm., 97 Ind. 549; Bartley v. Phillips, 114 Ind. 189, 16 N.E. 508; Board, etc., v. Pearson, 120 Ind. 426, 22 N.E. 134; Central Union, etc., Co. v. Fehring, 146 Ind. 189, 45 N.E. 64; Garrett v. State, ex rel., 149 Ind. 264, 49 N.E. 33. It does not seem to be a matter of mere discretion. It is the duty of the court to uphold the verdict if it so decides the issues and indicates the amount of recovery that the proper judgment may be rendered; otherwise the venire de novo should be granted.
The verdict must be reasonably certain, and our statute requires that in actions for the recovery of money, the jury must assess the amount of the recovery (section 557 Burns 1894, section 548 Horner 1897); but that is sufficiently certain which can be rendered certain, and where only a computation by the court is necessary to fix the exact amount of the verdict, so that the amount of recovery may be expressed in a single sum, the court may render judgment on the verdict. Gaff v. Hutchinson, 38 Ind. 341; Wainright v. Burroughs, 1 Ind.App. 393, 27 N.E. 591.
The court cannot resort to the evidence in search of facts in aid of the verdict, though such be the manifest intention of the jury; for the trial of the issues of fact having been submitted to the jury, it would not be within the province of the court to decide upon the existence of a fact, however well shown by the evidence; but the pleadings are part of the record as well as the verdict, and the verdict should be considered by the court in connection with the pleadings forming the issues tried by the jury. If the verdict so expressly refers to the pleadings that by a consideration of the pleaded matter so referred to in connection with other parts of the verdict the intention of the jury may be definitely understood, and thus a verdict complete in all necessary particulars be before the court, so that when a judgment sufficient in form has been rendered it can be known with certainty that it is in accordance with the verdict, it cannot be properly said that such verdict is too uncertain or ambiguous.
In the case before us, the complaint stated the credits, and the verdict established the truth of the complaint, and the untruth of the only defense relied on. It seems but reasonable to say that the reference in the verdict to credits was a reference to the credits stated in the complaint and the expression of the intention of the jury to allow them as so stated. Though we cannot commend the form of this verdict, we conclude that there was no available error in overruling the motion for a venire de novo.
In discussing the assignment relating to the motion for a new trial, counsel for appellant in their brief have referred to the admission of certain evidence, and the striking out of certain evidence, without pointing out the places in the record where such rulings may be found. Under the rules of this court this is not sufficient briefing.
The note in this suit was joint and several, and was signed by twenty persons, all of whom but one are the appellants. The motion for a new trial was a joint motion of all the appellants, being...
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