Currey v. Butte Electric Ry. Co.

• Decision Date: 23 May 1921
• Docket Number: 4381.
• Citation: 199 P. 243,60 Mont. 146
• Parties: CURREY v. BUTTE ELECTRIC RY. CO.
• Court: Montana Supreme Court

199 P. 243

60 Mont. 146

CURREY v. BUTTE ELECTRIC RY. CO.

No. 4381.

Supreme Court of Montana

May 23, 1921

Appeal from District Court, Silver Bow County; Edwin M. Lamb, Judge.

Action by Annie Currey against the Butte Electric Railway Company. Verdict for defendant, and from an order setting aside and striking the verdict from the files and annulling and striking from the files the judgment, defendant appeals. Order reversed, and cause remanded, with directions to reinstate judgment.

J. L Templeman, Sydney Sanner, and Fred J. Furman, all of Butte for appellant.

William Meyer and Harry Meyer, both of Butte, for respondent.

SPENCER C.

This is an action for damages for personal injuries. The record shows that on November 12, 1918, the jury returned into court with their verdict in favor of the defendant, which was filed and read by the clerk; that, after being so filed and read, the court inquired of the jury, "Is this your verdict?" and received an affirmative response; that upon motion of plaintiff, and in the presence of plaintiff and his counsel the jury was polled, eight answering in the affirmative and four in the negative. The jury was thereupon excused. On November 14th, judgment in favor of defendant was duly and regularly made and entered, and on the same day notice thereof given; that upon the same day plaintiff filed motion notice of motion, and affidavits of five jurors in support thereof, to set aside the verdict, which motion was heard on November 16, 1918. On November 16th, the defendant filed its motion and affidavits in support thereof, to strike the affidavits of plaintiff from the records and files, and, on November 22d, the court made its order as follows (omitting formal parts):

"That the journal entry containing the minutes of the proceedings had in the above-entitled action, and the minutes regarding the number of jurors who agreed to the verdict heretofore filed in the above-entitled action on the 12th day of November, 1918, be and the same is hereby ordered corrected so that said minutes show the true facts, viz. that, upon said jury being polled, seven answered that they were in favor of said verdict, and that the verdict as filed was their said verdict, and that five then and there in open court announced that the said verdict as filed was not their verdict, and that they did not agree to said verdict; and it further appearing to the court that said verdict heretofore filed in the above-entitled action on the 12th day of November, 1918, was not agreed to or concurred in by eight of the jury trying said cause, and that said verdict should not have been received and filed. It is hereby ordered, and this does order, that said verdict be set aside and stricken from the files in the above-entitled action; and, it further appearing to the court that no legal verdict was rendered in the above-entitled action, and that no verdict such as is contemplated by law and by the statutes of this state was filed in the above-entitled action, and it further appearing that the judgment heretofore signed, filed, and rendered in the above-entitled action is void, because not based upon any proper verdict; it is hereby ordered, and this does order, that the judgment heretofore signed and filed on the 14th day of November, 1918, be and the same is hereby annulled, set aside, and ordered stricken from the files of the above-entitled action; and it further appearing to the court that the above-entitled action is at issue, and ready for trial, it is hereby ordered that said action be, and the same is, hereby ordered placed upon the trial calendar of the above-entitled court."

It is further disclosed by the record that, during the argument of counsel for the plaintiff in support of plaintiff's motion to set aside the verdict, Hon. E. M. Lamb, presiding judge, stated that he knew that one of the five, namely, Juror T. F. Hickey, when his name was called, had voted "Yes," but that thereafter he had followed up the said response by some muttered words which the court did not get. No controversy arises over the vote of Jurymen Murphy, Sullivan, Carron, and Burke upon the poll of the jury, and only the vote of Juryman T. F. Hickey is in issue upon this appeal. Defendant appeals from the order setting aside and striking the verdict from the files and annulling and striking from the files the judgment.

Stripped of all incidental persiflage, the situation confronting us is that respondent sought to set aside a verdict of the jury which in all particulars had been arrived at, received, and filed in regular and legal manner and form. Basing his motion upon the affidavits of jurymen who tried the case, the verdict was set aside and ordered stricken from the files and the judgment annulled and stricken from the files, by order of the court, under the guise of "correcting its minutes." Notwithstanding respondent "moves the court to set aside the verdict," he now contends that was not the purpose of his motion, but the true object to be attained was simply the correction of the court minutes. We cannot accept respondent's view of the situation. The actual result of the procedure herein was the accomplishment indirectly of that which could not be accomplished directly. The nature of a lawsuit must be determined by the pleadings themselves, regardless of the designation given to the action by the parties thereto. St. John v. Taintor, 56 Mont. 204, 182 P. 129. A motion to set aside a verdict is, none the less, such when the only object sought and attained is the setting aside of the verdict, though masquerading in the garb of an order to correct the minutes. But, viewed from the respondent's standpoint, did the order of the court correct its minutes so that the true facts were spoken? Or did it change the minutes in substance, and by what power? The conceded facts are that the verdict was arrived at, received, and recorded by the clerk in legal manner and form, the jury polled, eight answering in the affirmative, and four in the negative, and the jury discharged. These facts appear in the minutes of the clerk; they were the actual facts as then understood by the court; and were entered and were intended to be entered as such. The court heard Juror Hickey answer in the affirmative. Confronted with this record, we think the following will establish the fact that the court did not correct, but changed its minutes in substance, and without power so to do.

Ruling Case...