Cothran v. Donaldson

• Citation: 49 Ga. 458
• Parties: HUGH D. COTHRAN, administrator, et al., plaintiffs in err0r. v. JOSEPH DONALDSON, defendant in error.
• Decision Date: 31 July 1873
• Court: Georgia Supreme Court

49 Ga. 458

HUGH D. COTHRAN, administrator, et al., plaintiffs in err0r. v. JOSEPH DONALDSON, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Practice in the Superior Court. Jury. Verdict. Mistrial. Before Judge Harvey. Bartow Superior Court. March Term, 1873.

For the facts of this case, see the decision.

Robert T. Fouche; John W. Wofford, for plaintiffs in error.

W. T. Wofford; A. Johnson, for defendant.

WARNER, Chief Justice.

This was an action brought by the plaintiff against the defendants on a promissory note for the sum of $4,181 00, dated 1st May, 1860, due one day after date, on which there were several credits. On the trial, the jury found a verdict for the plaintiff for the sum of $4,936 41. The plaintiff remitted the sum of $1,255 41, leaving the verdict to stand for the sum of $3,681 00. The defendants made a motion for a new *trial, on the several grounds stated therein, which was overruled, and the defendants excepted. It appears from the record and bill of exceptions that after the jury had been charged by the Court with the case, the Court adjourned until the next morning, the counsel for the respective parties consenting that if the jury agreed on a verdict before the Court convened the next morning, that the foreman of the jury might retain the verdict and return it in open Court. When the jury reassembled the next morning, the foreman stated to the Court, that on the previous evening the jury had made a verdict, but he had, during the night, and after the jury had dispersed, become satisfied there was an error in the verdict, and that he wanted the jury sent backto their room that the verdict might be corrected. The Judge certifies, in the bill of exceptions, that the verdict was imperfect and informal, but in what respect, it does not appear. The defendants\' counsel objected to the resubmission of the case to the jury, for the reason that they had dispersed and could no longer be the jury in the case. The Court, however, swore the jury, and asked them, in a body, if any one had tampered with them, or attempted to influence their opinions in any way in the matter, to which none of them made any reply, except that two of them stated that the sheriff and another person had asked them if they had agreed to a verdict. The case was then, against defendants\' objection, resubmitted to the jury, by the Court, they retiring to their room, and after being out several hours, returned the verdict...