Hannah v. Hannah

• Decision Date: 02 May 1923
• Docket Number: No. 420.,420.
• Citation: 120 A. 886
• Parties: HANNAH v. HANNAH.
• Court: Vermont Supreme Court

120 A. 886

HANNAH

v. HANNAH.

No. 420.

Supreme Court of Vermont. Windsor.

May 2, 1923.

Exceptions from Windsor County Court; Frank L. Fish, Judge.

Action by Matthew Hannah against John Hannah. Case transferred on defendant's exception to an order setting aside a verdict for plaintiff and granting a new trial because of misconduct of a juror. Judgment affirmed, and cause remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, [SLACK, and BUTLER, JJ.

Gilbert F. Davis and Fred G. Bicknell, both of Windsor, for plaintiff.

Stickney, Sargent & Skeels, of Ludlow, for defendant.

SLACK, J. The action is contract. A trial was had by jury, resulting in a verdict for the defendant. Before judgment, plaintiff filed a motion to set aside the verdict because of the misconduct, during the trial, of one of the jurors who sat in the case. The motion was supported by the affidavits of persons with whom the juror talked during the trial. No counter evidence was offered. The court found the evidence contained in the affidavits to be true, and held that it was sufficient to warrant the granting of the motion; and thereupon granted the same, and ordered a new trial, to which the defendant excepted. The questions raised by this exception are for review.

The plaintiff claims that the judgment below was not a final judgment to which exceptions would lie, and therefore that the case is not properly here, and cites Bloss v. Kittridge, 5 Vt. 30, in support of his claim. G. L. 2262, not in force when that case was decided, provides that the trial court may, in its discretion, pass exceptions to this court before final judgment, for hearing and determination. Apparently, this is what was done in the instant case, because the record shows that not only was the exception allowed, but that "execution was stayed and cause passed to the Supreme Court." In the circumstances, it was manifestly a proper case for the application of the statutory provision referred to. A verdict for the defendant had been set aside. He was entitled to take the judgment of this court on the question of whether the trial court had acted within its discretionary powers. When was he to do that? Logically, it should be done before further expense was incurred by either party. We think that, in the circumstances, the case is properly here.

The plaintiff claims that the motion was addressed to the legal discretion of the trial court, and that its action thereon is not subject to review by this court. This is so, unless it appears that in its exercise that discretion was abused. Dyer v. Lalor, 94 Vt. 103, 114, 109 Atl. 30. When abuse of discretion appears, however, the action of the trial court is reviewable. Schlitz v. Lowell Mut. Fire ins. Co. (Vt.) 119 Atl. 513. We look, therefore, to see whether there was an abuse of its discretion by that court.

It appears from the evidence adduced in support of the motion: That during the trial, the juror in question approached the plaintiff, and asked him, "How did they come to get hold of these papers?" That upon being told by the plaintiff that he did not know, the juror replied, "They must have got them when they came off the boat." That the juror talked with plaintiff's daughters, Margaret Haynes and Jeanie Rowell, about the case, on two different occasions during the trial. That he said to them on the first occasion: "Well, you girls have both testified, but they did not use you very badly, but they seemed to be giving it to your uncle (the defendant) in pretty good shape. He does not seem to remember much, but perhaps he doesn't want to." That he then inquired of Margaret if the defendant was a citizen of the United States, and upon being told that he was not, and that he had said at one time that he would not satisfy the damned Yankees by becoming one, he replied: "That that was what he thought, that he was one of those who after he had all the money he wanted, would pack up and go back to the other side." That he then inquired if the plaintiff was a citizen of the United States, and was told that be was. That the day following he said to Margaret: "Well, your uncle got it pretty hard yesterday. It looks to me as if he had six pounds rather than $150 when he came. He had raised it a little this morning," and then added that he had been on a good many juries, and bad come to the conclusion that "the man who told the biggest lie won the case." That he said to Jeanie, on the same day: "It looks as if your uncle didn't have many friends, and that when Miller came out with him apparently your uncle had six pounds...