
    Newell Cates, Adm’r of William Snadon, Respondent, v. Thomas Nickell, Appellant.
    1. Promissory Note—Verdict—Judgment.—In an action upon a promissory note, where the answer simply denied the execution of the note, and the cause was submitted to the jury, it was their duty, under the provisions of Gen. Stat. 1865, chap. 169, $$ 21 and 26, not simply to find a general verdict for plaintiff, but also to assess the amount due upon the judgment; and the court is not authorized to invade the province of the jury, and, in case of a general verdict by them, to proceed to ascertain the amount due upon the note and render judgment thereon.
    
      Appeal from Dade Circuit Court.
    
    
      T. A. Sherwood, for appellant.
    I. The verdict did not support the judgment, and was not in conformity to the provisions of the statute in such cases. (Gen. Stat. 1865, pp. 674-5, §§ 21, 26 ; Dysart’s Adm’r v. Austin et al., 36 Mo. 47, and cases cited; Branstetter v. Rives et al., 34 Mo. 318, and cases there cited.)
    
      Lindenbower, and Bray, for respondent.
    I. If a judgment upon a promissory note be irregular for lack of assessment of plaintiff’s damage by the jury, yet it is such an irregularity or omission as does not prejudice the defendant, and will not be sufficient to reverse tbe case. (Gren. Stat. 1865, p. 671, § 19; 15 Mo. 115.)
   Fago-, Judge,

delivered tbe opinion of tbe court

This action was instituted, in tbe Dade Circuit Court, upon a promissory note. Tbe answer simply denied tbe execution of tbe note, and, tbe cause being submitted to a jury, tbe following verdict was rendered: £< We, tbe jury, find tbe issue in favor of tbe plaintiff.” Tbe jury being thereupon discharged, tbe court proceeded to ascertain tbe amount then due upon tbe note, including principal and interest, and rendered judgment for tbe same. Upon an appeal to tbe District Court, this judgment was affirmed, and tbe defendant, Nickell, has again taken an appeal to this court.

Tbe sufficiency of tbe verdict to authorize tbe judgment of tbe Circuit Court is tbe only question presented by tbe record. Gren. Stat. 1865, chap. 169, §§ 21 and 26, contain tbe provisions by which this question must be determined. Tbe first directs that ££ in every issue for tbe recovery of money only, or specific real or personal property, tbe jury shall render a general verdict.” Tbe next provides as follows : When a verdict shall be found for tbe plaintiff, in an action for tbe recovery of money only, tbe jury shall also assess tbe amount of the recovery,” etc. It is plain that tbe jury must make a finding upon all tbe issues presented by tbe pleadings. All tbe facts'necessary to support tbe judgment must be found, and tbe court is not authorized to invade the province of the jury in this respect.

Tbe action here is for tbe recovery of money only, and tbe general verdict finding tbe issue for tbe plaintiff was only a part of tbe duty absolutely imposed by tbe statute upon tbe jury.

Tbe assessment of tbe amount of tbe recovery to which tbe plaintiff was entitled could only be made upon a finding of tbe facts shown by tbe evidence in tbe cause, and is not necessarily tbe amount alleged to be due in tbe petition. It is insisted, on tbe part of tbe respondent, that this irregularity is of such a character as not to affect prejudicially tbe rights of tbe defendant below.

There is no warrant for any such conclusion.

The amount of the debt due at the time was not passed upon by the jurors, and this could only be done by them as the triers of the fact. The note upon which the suit was brought .is not to be taken as conclusive evidence of the amount due, and the court could not assume that fact from the general verdict rendered. The recognition of such a practice as this, we think, would open the door to innumerable errors and irregularities. These can be easily avoided by following, in all cases, the plain and obvious meaning of. the statute.

The judgment of the District Court must be reversed and the cause remanded to the Dade Circuit Court.

The other judges eoncur.  