Hancock v. Winans
| Decision Date | 01 January 1857 |
| Parties | GEORGE HANCOCK v. FRANCIS WINANS. |
| Court | Texas Supreme Court |
Agreements of counsel, respecting the conduct of causes in court, may be set aside or disregarded, when to enforce them would work inconvenience to the court or injustice to a party.
The court in which such agreement is sought to be enforced, must be the judge of the sufficiency of the cause for declining to enforce it.
An agreement of counsel which would work an inconvenience, as to take up causes out of their regular order, the court would not enforce.
Applications to set aside such agreements are addressed to the discretion of the court, to be exercised, of course, with a due regard to the rights of the parties litigant; and this court cannot undertake to control its exercise, unless it were apparent that it operated to the prejudice of some right of the appellant.
Where there were several cases between the same defendant and different plaintiffs, all represented by the same counsel, and the counsel made an agreement that the defense pleaded in a certain one of said causes, in which D was plaintiff (which was not the first on the docket), should be considered as pleaded in all, and that the decision of all should be determined by the decision in said case; and when the first of said cases on the docket was called for trial, on motion of the plaintiff, said agreement was, for good cause, set aside by the court, whereupon the defendant asked a continuance, to give him time to make up his pleadings and prepare his defense; it was held to be a sufficient answer to said application, that the plaintiff offered to permit defendant to read on the trial the answer filed in the case in which D was plaintiff, and prepare his answer afterwards.
Whether it is the right of a party to have the jury polled, in order to render it certain that they are all agreed to the verdict, has not been determined by this court; and the authorities are not agreed on the question.
It is believed to have been generally treated as a matter of right, in this state, at least in criminal cases, to have the jury polled.
Admitting the right in general, the question here is whether, where the parties have consented that the jury, when they shall have agreed upon their verdict, may return it sealed to the clerk in the recess of the court, and disperse, and they afterwards come into court to have their verdict published, it is the right of a party to have them polled to ascertain, not whether it was their verdict when sealed and returned to the clerk, but whether they are still of the same mind; held not, and that the parties must be held to have waived the right to have the jury polled, unless it be for the purpose of ascertaining whether they were all agreed to it when it was returned; and that it is to be received and recorded only subject to that inquiry.
Appeal from Travis. Tried below before the Hon. Thomas H. DuVal.
Suit by appellee against appellant on a note signed by Logan Vandever as principal and defendant as surety. The petition alleged the particulars of the plaintiff's diligence in having the note allowed and approved as a valid claim against the estate of Vandever, who had departed this life. The defendant pleaded in abatement, to the effect that plaintiff had not used due diligence in the prosecution of the claim against Vandever's estate, etc.; and to the merits, that the note was signed by him without any consideration, and detailed the circumstances under which, he alleged, he signed the note for the mutual accommodation of the plaintiff and Vandever, and with the express agreement that he should not be required to pay the same, except in a certain event which would pass a consideration to him, but which had not taken place. Verdict and judgment for plaintiff.
First bill of exceptions as follows: Be it remembered, that on the 19th day of January, 1857, the above entitled and numbered case being regularly reached and called for trial, and on the motion of the attorneys for the parties respectively, the case of John W. Bunton v. George Hancock, and the case of Paul Deets v. Geo. Hancock, were set to be taken up on 22d January, 1857, for trial, on the following agreement previously entered into by the attorneys of the parties respectively, to wit:
Which agreement is marked filed on 16th June, 1856. And on the said 22d January, A. D. 1857, so set for taking up said cases of John W. Bunton v. Geo. Hancock, and Paul Deets v. George Hancock, the said attorneys for plaintiffs moved the court to set aside said agreement above set out, and to take up the said case of Francis Winans v. Geo. Hancock, as that stood first on the docket, to which motion defendant's attorneys would not agree, because they were not prepared to take up any of the cases, except those set, whereupon the court required plaintiff's attorneys to make out their showing to have said agreement set aside, on which showing said agreement was by the court set aside, of which motion plaintiff's attorneys gave the defendant's attorneys notice on the said 19th after said case had been set for the said 22d, which motion was by the court sustained, and said last named case was then called for trial. Whereupon the said defendant asked a continuance of said case to give him time to make up his pleadings, and prepare his defense, on which plaintiff's attorneys offered to permit defendant to read the answer made out in the said case of Deets v. Hancock in the trial of this case, and to prepare his answer afterwards. Whereupon the court refused a continuance of this case, and ordered the parties to proceed to trial. To all of which several rulings of the court setting aside said agreement, to calling up this case, refusing a continuance of the same, and ordering the parties to proceed to the trial of the same, defendant by attorneys except, etc.
The “showing” upon which the agreement was set aside was not included in the bill of exceptions, and, in the view of the question taken by this court, is not important.
Second bill of exceptions as follows: Be it remembered, that on the trial of the above entitled cause the jury retired to consider their verdict, and it was agreed that the jury might return their verdict sealed to the clerk. After considering for some considerable time, of the same, and after the court had adjourned for that day, being the ____ day of ____ and on Friday, that the jury sealed their verdict and delivered the same to the clerk, on Saturday morning, and then dispersed; that on Monday following ____ the plaintiff in open court demanded that the verdict be opened and read, and the jury not being present the defendant objected to the publication of the verdict, unless the jury were present and were willing that the same should be published as their verdict, and the court refused to open the verdict unless the jury were present, and ordered the sheriff to have the jury present in court on the next succeeding day, being Tuesday. On the next day, all the jury being present in court, the defendant asked that the jury might be polled, and that the court would ask of each of the jurors if they then at the time of its publication agreed to the verdict. To this mode of polling the jury the plaintiff objected, and asked that the jury should be questioned as to whether or not they agreed to the verdict at the time that it was sealed and handed to the clerk. And the court refused to poll the jury in the manner asked by the defendant, and polled them as asked by plaintiff, to which the defendants excepted, on the ground that the verdict would not be legal unless the jury would agree to the same at the time of its publication in their presence, and because the court would not be informed as to whether they agreed to it at that time, without polling them in the manner asked by defendant. The court then polled the jury as asked by plaintiff, and several of the jurors (two or three in number) answered with some apparent hesitation, that they had agreed to the verdict when it was delivered to the clerk, but none of the jury were asked or stated that they agreed to the verdict at the time of its publication in open court as above, though they all said they had agreed to it when sealed up and delivered to the clerk. To which ruling of the court in so polling the jury the defendant excepted, etc.
Hancock & West, for appellant, argued that there was no sufficient cause shown for setting aside the agreement of counsel. II. That the continuance should have been granted on the ground of surprise. III. That the verdict was contrary to the evidence. The main ground urged was that the testimony of the principal witness for plaintiff was not reliable, and was discredited by other witnesses.
IV. The fourth and last error is believed to be conclusive of this case. The court...
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...v. Pickens, 46 Tex. 99. On the right of plaintiffs to withdraw their agreement, waiving proof of certain facts, he cited: Hancock v. Winans, 20 Tex. 320;Botts v. Martin, 44 Tex. 91.ROBERTSON, ASSOCIATE JUSTICE. The appellees brought this suit for a league of land in Jefferson county, grante......
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...Setting aside a stipulation ordinarily is within the discretion of the trial court. Porter v. Holt, 73 Tex. 447, 11 S.W. 494; Hancock v. Winans, 20 Tex. 320; Pisano v. Texas & N. O. R. Co., Tex.Civ.App., 112 S.W.2d 316 (Writ Dis.). Stipulations may generally be received as judicial admissio......
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...only a determination by the court that no juror dissented as provided by Rule 293, Texas Rules of Civil Procedure. In 1857, in Hancock v. Winans, 20 Tex. 320, 325, Judge Wheeler considered the right of parties to have a jury polled when by consent of the parties the jury had returned a seal......