Louis Stix & Co v. S. Pump & Co

• Decision Date: 31 December 1867
• Citation: 37 Ga. 332
• Parties: Louis Stix & Co., plaintiffs in error. vs. S. Pump & Co., defendants in error.
• Court: Georgia Supreme Court

37 Ga. 332

Louis Stix & Co., plaintiffs in error. vs. S. Pump & Co., defendants in error.

Supreme Court of the State of Georgia

DECEMBER TERM, 1867.

Traverse of attachment affidavit. Motion for new trial. Decided by Judge Worrill. Muscogee Superior Court. May Term, 1867.

Louis Stix & Co., sued out attachment against various persons, partners under the firm name of S. Pump & Co., of Muscogee county, upon the grounds that " said defendants are about to remove beyond the limits of said county." Upon this issue was joined.

When the case was in order for trial, plaintiffs' attorneys made a motion for a continuance applicable to two cases between the same parties then and there pending. This motion was overruled, and came under review of this Court in the other case, which stood first on the docket of the Supreme Court. As to what that motion contained, and the judgment of the Supreme Court thereon, see said other case ante.

After the evidence had been introduced pro and con., the case had been argued and the Judge had charged the jury, the jury retired to their room, remained there deliberatingseveral hours, and then were allowed by the Court to separate and go at large to get their dinners, without the knowledge or consent of plaintiffs, or their attorneys. When the jury returned after dinner they went back to their room, and finally brought in a verdict, finding said issue in favor of the defendants. Plaintiff\'s attorneys, before the re-assembling of the jury, knew of said dispersion, but made no objection to their re-assembling, and making up and returning their verdict.

Plaintiffs' attorneys upon this state of facts alone, without offering to show any tampering with the jury, moved for a new trial because of said dispersion of the jury, and because of the refusal of said continuance.

The Court refused a new trial, and this refusal is assigned as error.

Ingraham & Crawford, J. F. Pou, for plaintiffs in error, (furnished no briefs to the Reporter.)

Moses & Garrard, for defendants in error, replied— mere separation did not disqualify the jury. Roberts & Copenhaver vs. The State, 14th Ga. R., pp. 8, 16, 17. Epps vs. The State, 19th Ga. R., 103. Smith vs. Thompson, 1st Cow. R., 221. The People vs. Douglass, 4 Cow. R., 26. Oliver vs. Springfield Presbyterian Church, 5 Cow. R., 283-4. Hill ex parte, 3 Cow. R., 355, Wilson vs. Abrahams, 1st Hill, 207. The People vs. Ransom, 7 Wend. R., 423.

Irregularity or misconduct of jury, where the Court is satisfied no injury could have been sustained, is insufficient to set aside verdict; 7th Wend. R., 423; Hornton vs. Hornton, 2 Cow. R., 589; King vs. Woolf Kiunear, 1st Chitty 401; Hill vs. Yates, 12th East R., 229; King vs. Hunt, 4th B., and Adol. 430. Glover vs. Woolsey, Dudley (Ga. R.,) 85; Monroe vs. State, 5th Ga. R., 96; Foster vs. Brooks, 6th Ga. R., 297; Stanley vs. State, 10th Ga. R., 82; Exrs. Riggins vs. Brown, 12th Ga. R., 271; Roberts & Copenhaver vs. State, 14th Ga. R., 8, 16, 17; Marshall vs. Morris, 16th Ga. R., 368; Walker vs. Exrs. of Hunter, 17th Ga. R., 415; Burtine vs. State, 18th Ga. R., 534; Epps vs. State, 19th Ga. R.j 103; Cohran vs. State, 20th Ga. R., 752; Carhart & Bro., vs. Marshall, 23 Ga., R. 225; Candler vs. Hammond, Ib., 493; Martin vs. Mitchell, 28th Ga. R., 382. Even if injury sustained, plaintiff waived it. 5th Cow. R., 283 ante, 23 Ga. R., 493 ante.

Walker, J.

1. As a general rule the jury, after they have been charged with a case, should not be permitted to separate without the express assent of the parties to the cause on trial. If it be necessary that any member of the jury should be temporarily absent from the body, he should be attended by an officer, and suffered to communicate with no one outside of the jury.

2. Jurors selected under the law occupy a high and responsible position. To their decision is referred important rights. They are selected on account of their intelligence and impartiality,...