Stevens v. Campbell

6 Iowa 538, 1858 Iowa Sup. LEXIS 159

• Court: Supreme Court of Iowa
• Decided: October 13, 1858
• Status: Published

Opinion

Stockton, J.

— The application for a continuance was properly overruled. The matters in dispute between the plaintiff and the defendant, Campbell, had been fully set forth in Campbell’s answer, and the plaintiff had been required to reply thereto under oath. His replication setting forth his knowledge, information and belief, was duly filed, and defendant was entitled to use it upon the trial. If deemed inexplicit, or insufficient, the defendant should have applied to the court to have the same made more full and complete. But having called for a replication to be given under oath, after the same was duly given, the defendant was not entitled to a 'continuance, in order to procure the attendance of the plaintiff as a witness, to testify concerning the same matters already embraced in his sworn replication. The affidavit for a continuance, does not allege any other matter expected to bo established by plaintiff’s testimony, if present and examined as a witness, than such as he had already stated on oath, all his knowledge and belief concerning.

As it was shown to the court that the copy of the note sued on, attached to the petition, contained, when first filed, the name of the defendant, Campbell, and that the said name had become defaced and illegible by frequent handling of the papers, there was no impropriety in the permission given by the court to the plaintiff', to amend the copy upon the trial, so as to make it conform to the original.

The court correctly refused to permit the defendant, Campbell, to be sworn as a witness. If the sulpmna issued had been duly served upon the plaintiff, and he had failed to appear and give testimony, it might be worth while to inquire, whether the writ itself was such an one, as to entitle the defendant, upon the failure of the plaintiff to obey it, to a continuance, or to be sworn himself as a witness, or to have his pleading ordered to be taken as true. As the writ issued, however, was not served on the plaintiff, there can be no pretence that the defendant was entitled to the relief he might have claimed under sections 2421 and 2422 of the Code, provided plaintiff had been duly subpwnaed, and had failed to appear and give his testimony.

Since the taking effect of the Code, the notice required to be given by the surety to the holder of a promissory note, to proceed by suit against the principal, must, in order to release the surety from liability, in case of the subsequent insolvency of the principal, be given in -writing. Code, section 970.

The cause having been submitted to the jury, they returned a verdict as follows: “We, the jury, find for the plaintiff, for the note and interest.” The court then directed the clerk to assess the plaintiff’s damages, and the clerk having reported the amount to the court, judgment was rendered in favor of the plaintiff for $'405,90. It is objected by the defendant, that the verdict of the jury was such that no judgment should have been rendered upon it; that it was error to direct the clerk to assess the plaintiff’s damages, or to render judgment on such assessment; and that the damages should have been ascertained by the verdict of the jury. It is provided by the Code, (section 1788), that where the action is for the recovery of money only, the jury shall assess the amount of the recovery. But the verdict is sufficient in form, if it expresses the intention of the jury; and it may be put in proper form by the court, if necessary. Sections 1789 and 1790. In this instance, we regard the action of the court, as nothing more than reducing the verdict of the jury to proper form. It would have been more strictly regular, for the court to have directed the jury to ascertain, in dollars and cents, the amount of the damages. But their intention is sufficiently indicated by the language of the verdict. McGregor, Lawes & Blakemore v. Armill, 2 Iowa, 30. When there is a judgment by default in favor of the plaintiff, if the action is for a money demand, and the amount of the proper judgment is a mere matter of computation, the clerk may assess the damages. Section 1828.

The jury in this case had determined the material question at issue between the parties, in favor of the plaintiff, “ that he ought to recover his damagesand upon the verdict as it stands, even according to the strictness of the common law, the plaintiff was entitled to an interlocutory judgment of “ quod recuperet.” The only question then would be, whether the court should have impanneled another jury to inquire of the damages. Ordinarily, where there is'an issue of fact tried by a jury, the jury, at the same time that they try the issue, assess the damages. Stephens on Pleading, 139. Put we think the interlocutory judgment to which the plaintiff was entitled, upon the verdict as it stood, was at least of equal validity with a judgment by default, as provided by the Code; and that it might well direct the damages to be assessed by the clerk, and award final judgment for the amount so ascertained.

Judgment affirmed.