Carter State Bank v. Ross
| Decision Date | 02 November 1915 |
| Docket Number | 5797. |
| Citation | 152 P. 1113,52 Okla. 642,1915 OK 878 |
| Parties | CARTER STATE BANK v. ROSS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 30, 1915.
Syllabus by the Court.
The general rule is that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. But this general rule is subject to this qualification: That affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury room, which does not essentially inhere in the verdict itself, as that the jury considered and were influenced by specific evidence that had not been offered or admitted at the trial, but not to show any matter which does essentially inhere in the verdict as that the juror did not assent to the verdict, that he misunderstood the instructions, or any other matter resting alone in the juror's breast.
Commissioners' Opinion, Division No. 2. Error from County Court, Beckham County; E. H. Gipson, Judge.
Action by the Carter State Bank against W. B. Ross. Judgment for defendant, and plaintiff brings error. Reversed.
M. A Tracy and Hendrix & Tracy, all of Sayre, for plaintiff in error.
T Reginald Wise, of Sayre, for defendant in error.
This action was prosecuted by the plaintiff in error to recover a balance claimed to be due on a promissory note. The defense was payment, and that more than the amount claimed had been paid, with prayer for judgment for the excess. The trial was to the court and a jury, and a verdict returned for the defendant for the sum of $19.15. To review the judgment rendered upon the verdict the plaintiff in error has prosecuted an appeal to this court.
It is urged that the court erred in permitting the jury to take to the jury room, when they retired to consider their verdict, a certain bank book, a part of which had been introduced in evidence at the trial, and that the jury considered the entire book, and such parts thereof as they desired, without confining their consideration to the parts of the book introduced in evidence, and that the court erred in excluding the proof of this fact embraced in the affidavit of two of the jurors, offered in support of this assignment included in the motion for a new trial. It is argued by the defendant in error, in answer to this assignment, that the plaintiff in error cannot complain, since he introduced all of the book in evidence; but that is not true. The record shows that only certain entries in the book relating to the transaction between plaintiff and defendant were offered and received in evidence.
The motion for a new trial is addressed to the discretion of the trial court, and, under the general rule, that discretion will not be reviewed by the Supreme Court, unless there is shown a clear abuse thereof. However, in this instance, there was no exercise of this discretion by the trial court, since he refused absolutely to consider the affidavits of the jurors. Due exception was taken, and the question of admissibility of the affidavits preserved. The two affidavits are practically the same, and the principal allegations therein are as follows:
"That, when we retired to consider our verdict, we took with us a certain book, which I believe was designated as the 'individual ledger'; that while we were considering the case we made an examination of said ledger, or rather one of our number, to wit, W. E. Simmons, made the examination of the book, and found, as he stated, where there was a part of the record, or rather a part of the leaves or pages, missing from the book, and that in the consideration of the case we took into consideration the fact that part of the leaves or pages had been removed...
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