Morgan v. Eggers

This is an action of ejectment. The complaint, framed in accordance with the local law, describes the premises sought to be recovered as follows: 'All of the north part of lot two, in section thirty-six, township thirty-eight north, of range ten west of the second principal meridian, which lies west of the track of the Lake Shore & Michigan Southern Railroad, and north of a line parallel with the north line of said lot two, and seven hundred and fifty-three feet south therefrom.' The answer contains a denial of each allegation in the complaint. On the 20th of January, 1883, during the November term of the court below, the following proceedings were had: 'Come the parties, by counsel, and by agreement this cause is submitted to the court for trial, and the court having heard the evidence, and being fully advised, finds for the plaintiffs, and orders and adjudges that they are entitled to and shall have and recover of defendant the possession of so much of said lot two as lies south of the south line of lot number one, as indicated by a fence constructed and maintained by the defendant as and on said south line, said fence running from the State line easterly to Lake Michigan, and assess the damages at $1 and costs, taxed at $_____, which the plaintiffs shall recover of defendant. All of which is finally ordered, adjudged, and decreed.' During the same term, February 5, 1883, the plaintiffs moved that the decision and finding be set aside and annulled, and a new trial granted, for the following reasons: (1) They were contrary to the law and the evidence. (2) The plaintiffs were surprised by a case falsely made by the defendant at the trial, which they had no reason to expect, and therefore did not come prepared to answer at the trial, namely, by his claim, supported only by the testimony of his son, that Jacob Forsyth and the surveyor, Wait, pointed out and agreed upon the line occupied by the fence of defendant mentioned in said decision as the true line of said Eggers' land; by his claim, supported by his testimony alone, that George W. Clarke agreed with him that the line occupied by said fence was the line between his and said Clarke's land; by his claim, supported by his own testimony and that of his son only, that a fence had been maintained on the line occupied by the fence, in said decision mentioned, for more than 20 years last past; and by his claim, supported by the testimony of his son only, that for 20 years past he had occupied all the land as far south as said fence. (3) The court admitted evidence for the defendant against the objection of plaintiffs, and the decision of the court was based on such irrelevant evidence. On the 6th of March, 1883, the following order was made: 'Came the parties by counsel, and the court, being fully advised, now overrules plaintiffs' motion for a new trial; to which plaintiffs except, and the court allows plaintiffs thirty days in which to file bill of exceptions.' No bill of exceptions, showing what occurred at the trial, was filed. On the 23d of April, 1884, the plaintiffs moved the court, upon written grounds filed, to amend and reform the judgment of January 20, 1883, so that it 'shall conform to the complaint in said cause, and to the finding or verdict of the court rendered upon the trial in said cause.' At a subsequent term of the court, June 27, 1884, the motion to amend and reform the judgment of the court was overruled. To that ruling the plaintiffs excepted, and took a bill of exceptions embodying only the motion to amend and reform the judgment, the order overruling that motion, and the opinion of the court thereon. The court, among other things, said: 'It was competent for the court, under the issue, to find to what extent the defendant was guilty or had held unlawful possession of the premises described; and if, under the evidence, it appeared that a fence had become or was the boundary of such occupation, it was proper that the fact should be stated in the finding and judgment of the court. The finding and judgment in this instance are not separate and distinct, as perhaps it would have been better to have had them. The meaning, however, is clear. It is as if the entry read in this way: And the court, having heard the evidence, etc., finds and orders and adjudges that the plaintiffs are entitled to and shall have and recover of the defendants,' etc. The errors assigned upon the record are that the judgment does not pursue the issue and finding thereon rendered and entered of record as the law directs and requires, and that the court erred in refusing to amend and reform the judgment.

Edward Roby, for plaintiff in error.

Addison C. Harris and W. H. Calkins, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.