Lavigne v. Lavigne

• Decision Date: 06 February 1923
• Citation: 119 A. 869
• Parties: LAVIGNE v. LAVIGNE et ux.
• Court: New Hampshire Supreme Court

119 A. 869

LAVIGNE

v. LAVIGNE et ux.

Supreme Court of New Hampshire. Coos.

Feb. 6, 1923.

Transferred from Superior Court, Coos County; Marble, Judge.

Action by Alice Lavigne against Arthur Lavigne and wife. Transferred on defendants' exceptions to denial of their motion to set aside verdict for plaintiff and for arrest of judgment. Exceptions overruled, and judgment rendered for plaintiff.

Ovide J. Coulombe, of Berlin, for plaintiff.

Matthew J. Ryan and Frank P. Blais, both of Berlin, for defendants.

SNOW, J. During the cross-examination of witnesses, the defendants moved for an order of court declaring a mistrial for misconduct of jurors, alleged to have occurred during such examination. After the verdict had been rendered, the defendants filed a motion to set it aside on this ground, and because of several other instances of alleged misconduct of jurors both in court and outside of the courtroom, also because of the alleged misconduct of others in the presence of jurors. Some of the acts complained of, if proven, were of a character to support a finding that the trial was rendered unfair and to justify an order setting aside the verdict.

In support of their motions, the defendants rely upon Perkins v. Knight, 2 N. H. 474, 475; Tenney v. Evans, 13 N. H. 462, 466, 40 Am. Dec. 166; Cilley v. Bartlett, 19 N. H. 312, 324; Wiggin v. Plummer, 31 N. H. 251, 272, 273; and Beattie v. Hilliard, 55 N. H. 428, 433, 435, in each of which cases, the question whether the verdict should be set aside for misconduct of jurors or parties was transferred by the presiding justice to the law term upon a statement of facts found by the trial court or upon facts supported by affidavits, in accordance with what appears to have been the more common early practice in such cases. In the eases relied upon, the trial justice made no ruling or finding as to the ultimate fact whether the trial had been rendered unfair. Under our present system of courts and practice, the question whether a trial is rendered unfair by reason of misconduct of jurors or others in their presence, as in the case of other questions involving the fairness of the trial (Fuller v. Bailey, 58 N. H. 71, 72; Merrill v. Perkins, 61 N. H. 262, 263), is determined upon hearing by the presiding justice as a question of fact (Beckley v. Alexander, 77 N. H. 255, 256, 257, 90 Atl. 878; Tierney v. Granite Works, 79 N. H. 166, 168, 106 Atl. 481; Maxfield v. Pittsfield, 67 N. H. 104, 105, 36 Atl. 609; Ready v. Manchester Gas Light Co., 67 N. H. 147, 36 Atl. 878, 68 Am. St. Rep. 642; Adams v. Bushey, 60 N. H. 290, 291, 293).

"While at one time the law court did consider questions of fact arising in the course of trials when specially reserved, at no time did the court attempt to pass upon questions of fact which were not so reserved; and, in view of the purpose of the act of 1901, separating the court of law from the court of fact, it has been held in a recent case that this court has not power to pass upon such questions even when reserved." State v. Wren, 77 N. H. 301, 366, 92 Atl. 170, 173; Nawn v. Railroad, 77 N. H. 299. 302, 303, 304, 91 Atl. 181; St. Laurent v. Railway, 77 N. H. 460, 462, 92 Atl. 959.

In the ease at bar, a trial was had upon the defendants' motions, in which the defendants were fully heard, partly upon oral testimony of witnesses and partly upon affidavits. The court, after careful consideration of all affidavits filed and evidence taken, denied the defendants' motion. No findings of fact were made or requested, and no special question of law was reserved. The denial of defendants' motion to set aside the verdict by necessary inference included a finding of fact that the trial was not rendered unfair by the alleged misconduct. Lee v. Dow, 73 N. H. 101, 104. 59 Atl. 374; Maxfield v. Pittsfield, supra. The only question of law raised by the defendants' exception, therefore, is whether there was sufficient evidence to support this implied finding. Maxfield v. Pittsfield, supra; State v. Wren, supra; St. Laurent v. Railway, supra. The trial justice had an opportunity for personal observation at the time of the supposed misconduct in the courtroom. As to the misconduct complained of outside of the courtroom, the evidence was conflicting. As to each alleged act of misconduct, both in and out of court, there was evidence from which it could be found that it did not occur, was harmless, or did not influence or prejudice the jury. The defendants therefore take nothing by this exception.

Some over two months after the trial and verdict, the defendants moved to arrest the judgment on the ground that the plaintiff and her husband had resumed marital relations, and were then living together. Upon hearing, the alleged facts were conceded to be true. The defendants' exception to a denial of their motion seems to be founded upon a misconception of the basis of the...