Giandonancio v. O'Donnell

Superior Court of Delaware

Giandonancio v. O'Donnell

103 A. 353, 30 Del. 102, 7 Boyce 102, 1918 Del. LEXIS 23

CourtSuperior Court of Delaware

DecidedMarch 21, 1918

DocketCertiorari, No. 36

StatusPublished

Cited by1 cases

This text of 103 A. 353 (Giandonancio v. O'Donnell) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Giandonancio v. O'Donnell, 103 A. 353, 30 Del. 102, 7 Boyce 102, 1918 Del. LEXIS 23 (Del. Ct. App. 1918).

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Opinion

Boyce, J.,

delivering the opinion of the court:

There are numerous exceptions to the record. It is unnecessary to consider more than one of them, to wit:

“That * * * the jurors rendered a verdict only for six cents damages and nothing more and not for possession of the premises, and not in accordance with the statute in that behalf.”

Upon the request of the defendant, the cause was tried by jury. Rev. Code 1915, §4071, provides that:

“If on trial it shall be proved to the satisfaction of the justice, or the jury, as the case may be, that the plaintiff is entitled to the possession of the premises, he shall have judgment for the possession thereof, and for his costs, and also, in case of a tenant holding over after notice to quit, for such damages as shall be assessed. * * *”

Section 4072 provides, in case of tenant holding over, the verdict may be in this form:

“We, the jurors, * * * do find for the plaintiff, and we do assess the damages, on occasion of the premises, to the sum of-.”

[1] The verdict-in this case was:

“We, the jurors, * * * do find for the plaintiff in the sum of six cents damages.”

This was not a finding for the plaintiff with respect to his right of possession of the premises. It was not such a verdict as substantially meets the requirements of the statute. Crow v. Cann, 2 Pennewill, 208, 43 Atl. 839; Belt et al. v. Abramson, 2 Boyce, 536, 82 Atl. 90. In the case of Clothier v. Clark, 4 Harr. 365, there was an express finding for the plaintiff in conformity [104]*104with the statute. The objection made was not that the verdict was erroneous, but that the judgment did not follow the finding of the jury.

[2] The error in this case cannot be amended under Section 4083 and it is fatal. But, considering the merits of the case, a writ of restitution ought not be awarded. The judgment is reversed without a writ of restitution.

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Boyce, J.,

delivering the opinion of the court:

There are numerous exceptions to the record. It is unnecessary to consider more than one of them, to wit:

“That * * * the jurors rendered a verdict only for six cents damages and nothing more and not for possession of the premises, and not in accordance with the statute in that behalf.”

Upon the request of the defendant, the cause was tried by jury. Rev. Code 1915, §4071, provides that:

“If on trial it shall be proved to the satisfaction of the justice, or the jury, as the case may be, that the plaintiff is entitled to the possession of the premises, he shall have judgment for the possession thereof, and for his costs, and also, in case of a tenant holding over after notice to quit, for such damages as shall be assessed. * * *”

Section 4072 provides, in case of tenant holding over, the verdict may be in this form:

“We, the jurors, * * * do find for the plaintiff, and we do assess the damages, on occasion of the premises, to the sum of-.”

[1] The verdict-in this case was:

“We, the jurors, * * * do find for the plaintiff in the sum of six cents damages.”

This was not a finding for the plaintiff with respect to his right of possession of the premises. It was not such a verdict as substantially meets the requirements of the statute. Crow v. Cann, 2 Pennewill, 208, 43 Atl. 839; Belt et al. v. Abramson, 2 Boyce, 536, 82 Atl. 90. In the case of Clothier v. Clark, 4 Harr. 365, there was an express finding for the plaintiff in conformity [104]*104with the statute. The objection made was not that the verdict was erroneous, but that the judgment did not follow the finding of the jury.

[2] The error in this case cannot be amended under Section 4083 and it is fatal. But, considering the merits of the case, a writ of restitution ought not be awarded. The judgment is reversed without a writ of restitution.

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Bluebook (online)

103 A. 353, 30 Del. 102, 7 Boyce 102, 1918 Del. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giandonancio-v-odonnell-delsuperct-1918.

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