Hary v. Speer

• Decision Date: 30 October 1906
• Citation: 97 S.W. 228,120 Mo.App. 556
• Parties: JOHN HARY and CLARA HARY, Respondents, v. SPEER, Appellant
• Court: Missouri Court of Appeals

97 S.W. 228

120 Mo.App. 556

JOHN HARY and CLARA HARY, Respondents, v. SPEER, Appellant

Court of Appeals of Missouri, St. Louis

October 30, 1906

Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.

AFFIRMED.

STATEMENT.--The only question presented by the record for decision is the action of the court with respect to receiving the verdict and entering judgment thereon. The case was tried and submitted to a jury just prior to a noon recess in the circuit court. The following, which is conceded by counsel to be a true and accurate statement of the facts pertaining to the controverted point, was dictated into the record by the trial court at the time of its occurrence. We copy verbatim from the bill of exceptions. Judge Ryan, presiding, dictated as follows:

"Just take this record in the case of John Hary v. R. C. Speer. The jury went out at one o'clock, and after the recess of the court had been taken returned a sealed verdict which at two o'clock the court opened, i. e., the envelope containing the instructions and forms of verdict, and the first paper that caught the court's eye was a verdict, for the defendant, signed by E. J. Ruelbach, foreman. The court assuming this was the verdict of the jury, looked no further into the papers, and had the clerk read the verdict to the jury. The clerk asked them if this was their verdict, and the clerk now reports to the court the jury seemed surprised and one of them slightly nodded his head, and the clerk, assuming it was their verdict, read it. The court, sitting at the farther end of the bench, did not observe that part of what took place. The court thereupon told the jury to take their seats in the body of the room, and a few minutes thereafter (within five minutes) the clerk called the court's attention to the fact that there was another verdict duly signed, which was in favor of the plaintiff in the sum of $ 1,220. Thereupon the court directed the sheriff to recall the jurors to the box, and when they had all taken their seats the court called their attention to the fact that there were two signed verdicts in the case, that the one for defendant had been read, and asked them, through their foreman, which was their verdict. The foreman arose and stated that the verdict for the plaintiff for $ 1,220 was the verdict that they had rendered and in answer to the court's inquiry how this mistake had occurred in the signing of two verdicts answered that he could only explain that by saying it was the ignorance of the forms, that he had by inadvertence signed also the verdict for defendant. The court then directed the clerk to read to the jury the verdict in favor of the plaintiff for $ 1,220, and, in response to a question addressed to them by the court, they all responded that that was their verdict. Thereupon the court received that as the verdict of the jury in the case. No other verdict was ever recorded in minute or record book save the one for plaintiffs."

Upon this state of facts, the exception arises, and the trial court, having refused to set the verdict and judgment aside on proper motion, the defendant appeals here, insisting that the court erred in its ruling in that behalf.

Judgment affirmed.

J. L. Secor and H. W. Adams for appellant.

(1) The court had no more authority or power to call these twelve men into the jury box again to consider a verdict in this case than he had to call any other twelve men from among those summoned for jury service and who, like these twelve, were waiting in the court room the further orders of the court. 17 Am. and Eng. Ency. of Law, p. 1261; Lawn v. Wood, 69 Ill. 282; Richards v. Page, 81 Me. 563; West v. Railroad, 61 Miss. 536; State v. Dawkins, 32 S.C. 17; Mills v. Commonwealth, 7 Leigh (Va.) 721; Champ Spring Co. v. Roth Tool Co., 103 Mo.App. 103. (2) So long as the jury is held intact as such, and while the relation of its members to the case as jurors continues, it has power, under the direction of the court, to correct or change its verdict. But the jury has absolutely no power as such after it has been discharged from the case. It is well established that the court must enter judgment on the verdict as rendered by the jury; and the court has no power to correct or change the verdict, even with the assistance of the twelve men, or any of them, who composed the jury after the jury as such has been discharged from the case. Dyer v. Combs, 65 Mo.App. 148; Champ Spring Co. v. Roth Tool Co., 103 Mo.App. 103; Peake v. Redd, 14 Mo. 79; Nicholson v. Smith, 15 Ore. 200; Settle v. Allison, 8 Ga. 201; Millins v. Christopher, 36 Ga. 584; Bradley v. Rogers, 33 Kan. 120; Walters v. Jenkins, 16 Serg. & R. 414; 16 Am. Dec. 583. (3) When a jury is instructed to return a sealed verdict, the court may, upon opening the verdict in the presence of the jury, instruct the jury to correct an error in the form of the verdict; but it cannot, in such case, instruct the jury to alter the substance of the verdict. Jones v. Bunder, 56 Mo.App. 199; Rogers v. Sample, 28 Neb. 141; Moore v. Merchants, etc., 70 Ill. 210; Childs v. Carpenter, 87 Me. 144; Olwell v. Milwaukee Society, 92 Wis. 330; Spencer v. Williams, 160 Mass. 117; Sulliff v. Gilbert, 8 Ohio 405.

Perry Post Taylor and Martin A. Seward for respondents.

(1) The first verdict read by the clerk, was never recorded and hence the court had the right to have entered of record the true verdict (for plaintiff). Kreibohm v. Yancey, 154 Mo. 82. (2) It must be presumed that the verdict (for plaintiffs) entered on the record, was so entered with the consent of the jury. State v. Steptoe, 1 Mo.App. 21. (3) The entire record shows, beyond a doubt that the verdict entered was the verdict agreed upon by the jury and that there had been no opportunity whatever to tamper with the jury. The verdict entered conformed to the real intention of the jury and should be allowed to stand. Acton v. Dooley, 16 Mo.App. 449.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J. (after stating the facts).

--1. It is argued by defendant that the verdict which the court first discovered among the papers, upon opening the sealed envelope, and read to and in the presence of the jury, is the verdict which the court should have directed filed and recorded in the case and upon which it should have entered judgment. It is urged that the court is without authority to accept the true verdict, as it did after the first was read to the jury. We are not impressed with the argument advanced. The defendant cites many authorities in support of the proposition, to which we fully accede, that after the jury is discharged by the court, the court has no power to recall it to further consider the case or change or correct the verdict, inasmuch as the jury is without further power over the case after its discharge. [Bond v. Wood, 69 Ill. 282; Richards v. Page, 81 Me. 563, 18 A. 289; State v. Dawkins, 32 S.C. 17, 10 S.E. 772; Mills v. Commonwealth, 34 Va. 751, 7 Leigh 751; Walters v. Junkins, 16 Am. Dec. 585; Settle v. Alison, 8 Ga. 201; 17 Amer. and Eng. Ency. Law (2 Ed.), 1261.] The rule has no application to the facts of this case, however, for two very good and sufficient reasons, the first of which is that there is nothing in the record showing that the jury had been discharged, and second, the jury were not required by the court to make any change in their verdict nor to further consider the case in any respect. It is shown that the court found first upon opening the sealed envelope, a paper in the form of a verdict in favor of the defendant, and signed by one of the jurymen as foreman. The court looked no further and passed it to the clerk who read the same in the presence of the jury and in answer to the query if this was their verdict, one juror nodded his head while the others looked surprised. There is nothing before the court to show that the same was either filed or recorded by the clerk nor is it made to appear that the court directed it to be filed or entered of record or that the court discharged the jury. On the contrary, it is shown not to have been entered of record. It is true the court directed the jury to take seats in the body of the court room. This may or may not have been done with the purpose of discharging them from the case. It does not appear that the jury was discharged, but on the contrary, it does appear that immediately, within five minutes thereafter, the court discovered, not that the jury had made a mistake in either the form or substance of its verdict, but that the foreman had made a mistake in drafting one form of verdict which he deposited with the papers and that the jury had corrected the error by returning into court a proper verdict along with the one mistakenly drafted by the foreman, and the court had fallen into error by causing to be read the erroneous verdict without looking through the papers where the true verdict was properly contained. Now, in this state of facts, was it proper for the trial court to call upon the jury, all of the members of which were still present and not formally discharged, to aid it in ascertaining which of the two papers was the true verdict? We are persuaded that it was manifestly proper under these circumstances for the court to permit the jury to designate which was the true verdict. In the first place, it is abundantly well settled that the trial court may, before discharging the jury and before recording the verdict, require the jury to correct errors in or to remove obscurities and ambiguities therefrom. The rule is that the jury, under the direction of the court remain in control of their verdict until the same is announced and recorded unless they are discharged by the court prior to that time, in which event, of course, their...