Gulf Coast Stevedoring Co. v. Gibbs.

• Citation: 124 Miss. 188,86 So. 582
• Decision Date: 01 January 1920
• Docket Number: 21401
• Court: United States State Supreme Court of Mississippi
• Parties: Gulf Coast Stevedoring Co. v. Gibbs.

86 So. 582

124 Miss. 188

Gulf Coast Stevedoring Co. v. Gibbs.

No. 21401

Supreme Court of Mississippi

January 1, 1920

APPEAL AND ERROR. Supreme Court will not consider statement dehors the record, made by the trial judge as reasons for his order.

Where a judge acting under rule 28 of this court (72 So. ix) orders the sending up of original papers for inspection, the court will consider the papers sent up, but will not consider statement dehors the record, made by the judge as reasons for his order.

HON. D M. GRAHAM, Judge.

Proceedings between the Gulf Coast Stevedoring Company and George Gibbs. Judgment for the latter, and the former appeal. On motion to strike certain portions from a paper signed by the trial judge. Motion overruled.

See also, 86 So. 582.

White &amp Ford, for appellant. Gex, Waller & Morse, for appellee.

ETHRIDGE J., delivered the opinion of the court.

This is a motion to strike from the record certain pages, for the reason that they constitute no part of the record. The pages moved to be stricken from the record constitute a petition to the circuit judge in vacation, alleging that at the trial of the case, through inadvertence, the jury, in rendering its verdict, inserted the amount of their finding in a blank space of an instruction on the form of the verdict; that this instruction instructed the jury that if they found for the plaintiff they would find ---, and that the jury filled in the blank so as to read fifteen hundred dollars, making the instruction read as though the court had directed the jury to find fifteen hundred dollars, instead of an amount to be determined by the jury. It was alleged that the instruction was handed the jury without an insertion of the amount therein, but that it now appears so, though the instruction was granted without an insertion as to the amount of the verdict therein. It was further alleged that, when the jury was brought in, the clerk did not call this inadvertence to the attention of the parties, but read the verdict of the jury out as:

"We, the jury, find for the plaintiff, and assess his damages at fifteen hundred dollars."

It was further alleged that on the reading of this verdict the court asked the jury in a body whether that was their verdict, to which all assented. The petition prayed that the court cure said error or defect in the record by directing the clerk to strike out of the form of the verdict in instruction No.---the amount therein inserted by the jury, or in the alternative, to substitute for the instruction as now erroneously made up by the jury instruction No.---as given by the court to the jury. The circuit judge proceeded to hear the matter, and in the course of the hearing the circuit judge made the following statement:

"When instruction No. 4 was presented me for signature, it was merely a form of verdict for the plaintiff in the event the jury found for the plaintiff, and the amount in said instruction was left blank."

Thereupon the following questions were propounded by counsel for defendant to the court and the following answers thereto made:

"This case was tried at the March term, 1920, of the circuit court?

"By the Court: Yes.

"That was a seven-weeks term fixed by law?

"By the Court: Yes.

"Did that term of court run the entire time?

"By the Court: No; only four weeks.

"On the date you make the above statement and hear this petition is not in term time?

"By the court: No; it is long after term time.

"You did not keep your eyes on the instruction, after it was signed by you and verdict rendered?

"By the Court: I never saw it after it was signed by me.

"You remember that George Gibbs was sitting by the lawyers' table, and the instructions were lying on the table?

"By the court: I don't remember now of noticing the plaintiff during the argument."

Thereupon the following order was signed by the circuit judge.

"This matter coming on for hearing this day on the petition of the plaintiff to correct an error in the record in instruction No. 4, which is in the form of the verdict for the plaintiff which is alleged in said petition to have been changed by the jury by inserting the amount of fifteen hundred dollars in the instruction, and it appearing to the court that when said instruction No. 4 was given by the court that no amount was fixed in the said instruction No. 4, that the place for the amount was left blank, and that the jury in fact wrote out their verdict on a separate piece of paper in the usual form and returned it into open court as the verdict of the jury, and the court being satisfied that the jury in fact found the amount of their verdict at fifteen hundred dollars, and that the insertion of the amount in said instruction which is written in ink---the balance of said instruction being typewritten---was inserted either by the jury or some one without authority, is of the opinion that said record ought to be and is hereby ordered corrected, to show the true record of the proceedings with reference to said instruction No. 4. To...