Fleming v. Town of Shenandoah

• Decision Date: 11 December 1885
• Citation: 67 Iowa 505,25 N.W. 752
• Parties: FLEMING v. TOWN OF SHENANDOAH.
• Court: Iowa Supreme Court

67 Iowa 505

25 N.W. 752

FLEMING

v.TOWN OF SHENANDOAH.

Supreme Court of Iowa.

Filed December 11, 1885.

Appeal from Page district court.

The plaintiff brought this action to recover damages for a personal injury, which she alleged she received by falling upon a defective sidewalk in the town of Shenandoah. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.James McCabe, for appellant, Town of Shenandoah.

Stockton & Keenon, for appellee, Catherine Fleming.

ROTHROCK, J.

1. One of the grounds of the motion for a new trial was that William E. Butler, the official short-hand reporter of the court, was permitted to go into the jury-room and, in the absence of court and counsel, and without the knowledge of the defendant or counsel, read from his notes taken at the trial such portions of the testimony as the jury called for. It is stated in the abstract that the following was appended to the motion for a new trial: “JOHN W. HARVEY, judge of said court, sworn, stated that, after the jury had been out some time, he received a communication from the foreman requesting that the short-hand reporter be sent in to read certain testimony, not stating what testimony they desired to hear. The judge sent the reporter into the room without consulting either of the attorneys, to read the testimony that the jury desired. Don't remember that either counsel were present at the time. The reading by the reporter was not in presence of the court, but in the jury-room, if there was any reading, and it is presumed there was. Wm. E. Butler, official reporter, in pursuance with Judge HARVEY'S direction: I read to the jury in the jury-room Wm. McMahon's testimony, both direct, cross-examination, redirect examination, and a portion of R. W. Morse's testimony.”

Counsel for appellant insists that the motion for a new trial should have been sustained because of this irregularity in the course of the trial. We think the position is well taken. It is provided in section 2791 of the Code that when the jury retire for deliberation upon the case they shall be kept together under the charge of an officer until they agree, or are discharged by the court, and that the officer having the jury under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon a verdict, unless by order of the court. Section 2797 is is follows: “Upon retiring for deliberation the jury may take with them all books of account, and all papers which have been received as evidence in the cause, except depositions, which shall not be so taken unless all the testimony is in writing, and none of the same has been ordered to be struck out.” The evident purpose in excluding the depositions is that they shall not be given more consideration by the jury than the oral testimony in the case. Reading to the jury a part of the testimony from the short-hand notes would have precisely the same effect. It cannot be claimed that there is any authority of law or practice, written or unwritten, which can justify an order to the short-hand reporter to go into the jury-room and read testimony to the jury, unless by the consent of the parties. It never has been regarded as within the province of even the trial judge to have any communication with the jury upon the law or the facts of the case after they have retired for deliberation, unless by the consent of the...