Chinn v. Davis

• Decision Date: 05 April 1886
• Citation: 21 Mo.App. 363
• Parties: G. W. R. CHINN, Defendant in error, v. J. C. DAVIS, Plaintiff in error.
• Court: Kansas Court of Appeals

21 Mo.App. 363

G. W. R. CHINN, Defendant in error, v. J. C. DAVIS, Plaintiff in error.

Court of Appeals of Missouri, Kansas City.

April 5, 1886

ERROR to Platte Circuit Court, HON. G. W. DUNN, Judge.

Reversed and remanded.

The case is stated in the opinion.

ANDERSON & CARMACK and SAMUEL HARDWICKE, for plaintiff in error.

I. Defendant and plaintiff were partners. When they dissolved defendant owed the firm $429.54, and admitted it in his answer to this suit. But he claimed it was cancelled in a settlement between them, while plaintiff claimed the whole debt was due. According to the testimony the whole sum was due, or nothing was due. Yet the verdict was for two hundred dollars for the plaintiff. There is no testimony to sustain this verdict and it should have been set aside. Hill on New Trials, 104.

II. The law does not tolerate the practice of communication between the jury and the judge of the court, except in open court and in the presence of counsel. State v. Alexander, 66 Mo. 148.

III. Such a practice violates a substantial right, and a party moving for a new trial upon the ground of a communication between the judge and the jury, without his knowledge or assent, is not bound to show affirmatively that such communication tended to his injury. Bank v. Mix, 51 N.Y. 558; Niel v. Abel, 24 Wend. (N. Y.) 184; Moody v. Pomeroy, 4 Denio (N. Y) 115; Chalmers v. Whitmore, 22 Minn. 305; Dent v. King, 1 Georgia 200; Benson v. Clark, 1 Cow. (N. Y.) 258.

WOODSON & WOODSON, for defendant in error.

I. The motion for new trial does not show that the juror was talking to the judge about this case. There is no law in civil cases requiring the jury to be kept to themselves, after the case has been submitted to them, as in criminal cases.

II. The law of this state is, that when a judgment of a lower court is being revised by an appellate court, every presumption is made in favor of the judgment. It is presumed that the lower court would not do or say anything to the jury, which was prejudicial or detrimental either to plaintiff or defendant. It devolves on the other party to show affirmatively in what the wrong or injustice complained of consists. In such case it must be presumed that the court below would have acted honestly and granted a new trial.

III. The verdict and judgment were clearly for the right party. The weight of the evidence was in favor of the plaintiff, and it is strongly confirmed by concurring circumstances.

IV. This case was first appealed, and was dismissed for not complying with the rules of this court. Then they sued out a writ of error. Can a person appeal, and let it go by default and then sue out a writ of error? We think not. Either may be done, but not both, and when they have elected to appeal they must stand by their election.

V. There has never been service of brief.

PHILIPS P. J.

I. This is an action to recover the sum of $429.54, alleged to be due the plaintiff from the defendant. The defendant claimed that this debt was included in the transfer of a partnership interest by him to plaintiff, and was settled thereby. This was denied by the plaintiff. The whole issue was one of fact. If the said debt was included in said transfer the defendant owed the plaintiff nothing. If it was not so included he owed the plaintiff the said sum of $429.54. There was evidence at the trial, had before a jury, tending to support both propositions. The jury, however, returned a verdict in favor of the plaintiff for the sum of two hundred dollars.

The defendant prosecutes this writ of error, and insists that the trial court should have awarded him a new trial because the verdict was contrary to the evidence--that if the plaintiff was entitled to recover one dollar he was entitled to the entire sum sued for.

We must hold this objection not well taken on the authority of the case of Alderman v. Cox, 74 Mo. 78.

II. A more serious question arises on the assignment of error predicated of the conduct of the trial judge and the foreman of the jury. It appears from the bill of exceptions that after the conclusion of the trial and the retirement of the jury to consider their verdict, the foreman left his fellows in the jury room, and without leave of court first had, or the assent of counsel, approached the judge on the bench, and held conversation with him in whisper, which was inaudible to the counsel for defendant, but from which it seemed as if the juror were propounding questions to the judge and the judge making answers thereto. At the conclusion of which interview the juror rejoined the jury, and thereafter the jury returned into court the verdict above stated.

These facts were brought to the attention of the court in the motion for a new trial, supported by the affidavits of defendant's counsel, who stated, " that this conference was going on when affiants first noticed it, and when it was too late to make objection, and that they did not in any way consent that said juryman should leave his co-jurors, or have consultation with the judge."

We do not find that this precise question has been before our supreme court. Its strong tendency unquestionably has been not to interrupt the verdict for imputed misconduct on the part of a juror, unless it appeared, or could reasonably be inferred, that such conduct probably tended in some way to influence the verdict of the jury. State v. Upton, 20 Mo. 397; State v. West, 69 Mo. 401; State v Burton, 74 Mo. 292; State v. Clifton, 73 Mo. 430; State v. Hays, 78 Mo. 307. But none of these cases presented or discussed the question involved in this case.

We take it to be the generally recognized rule of this country, as expressed by Parsons, C. J., in Sargent v. Robards (1 Pick. 337), that " no communication whatever ought to take place between the judge and the jury after the cause is committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of counsel in the cause. * * * It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it; the only sure way to prevent all jealousies and suspicions is to consider the judge as having no control whatever over the case, except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice; and the convenience of jurors is of small consideration compared with this great object. * * * It is better that everybody should suffer inconvenience than that a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness and jealousy." So our supreme court, in State v. Alexander (66 Mo. 164), say: " The jury are the trier of the facts, and the court has no more right to interfere with them while considering of their verdict, except in open court, to discharge them from time to time, or in the presence of the accused and his counsel, to instruct them as to the law of the case, than the jury have to invade the province of the court."

This rule should certainly apply with force under our code of practice, where instructions to the jury ore tenus are dispensed with, and by positive statute are required to be given in open court in writing and before the argument of counsel to the jury is begun. It would unquestionably have been error had the trial judge, at any stage of the trial, instructed the jury orally as to any question of law arising in the cause.

In Watertown Bank & Loan Company v. Mix et al. (51 N.Y. 558), after the jury had retired to consider of their verdict, they sent to the judge a written inquiry as to...