Murphy v. Murphy

• Citation: 47 N.W. 142,1 S.D. 316
• Parties: JOHN MURPHY, Plaintiff/Appellant, v. ISAAC A. MURPHY, Defendant/Respondent.
• Decision Date: 24 November 1890
• Court: Supreme Court of South Dakota

1 S.D. 316

47 N.W. 142

9 LRA 820 (1890)

JOHN MURPHY, Plaintiff/Appellant,

v.

ISAAC A. MURPHY, Defendant/Respondent. South Dakota Supreme Court Appeal from District Court of Minnehaha County, SD Hon. John E. Garland, Judge Reversed Palmer & Rogde, Sioux Falls, SD Attorney for appellant. U. S. G. Cherry, Sioux Falls, SD Attorney for respondent. Argued Apr. 4, 1890. Opinion filed Nov. 24, 1890

BENNETT, J.

The plaintiff and appellant brought his action on two promissory notes, aggregating, principle and interest, at the time of trial, $688. The defendant makes no defense to the notes, but alleges, by way of counter-claim, that the plaintiff is indebted to him in the sum of $2,162, with interest from July 3, 1883, for work and services performed by defendant for plaintiff. The plaintiff put in a general denial to the counter claim. A trial was had upon the issues; a verdict rendered by the jury as follows:

“We, the jury in the above entitled-cause, find in favor of the defendant, Isaac Murphy, and assess his damages, over and above the amount claimed in the complaint, at the sum of six hundred and ninety dollars, damages. C. C. Metcalf, Foreman.”

The plaintiff then filed a notice of intention to move the court to vacate and set aside the verdict, and grant a new trial, for the following reasons: (1) Misconduct of jury. (2) Accident and surprise, which ordinary prudence could not have guarded against. (3) Excessive damages, appearing to have been given under the influence of passion and prejudice. (4) Insufficiency of the evidence to justify the verdict, and that it is against the law. (5) Errors of law occurring at the trial, and excepted to by plaintiff. With the notice of intention to move for a new trial, the following affidavit of the jurors was filed,

“Territory of Dakota. county of Minnehaha—ss.:

“H. C. Aldrich, Ira Winter, John Fortune, Henry Brandt, C. C. Metcalf, C. H. Wangsness, D. O. Crooks. James Riley, Allen Gould, Thos. Rickard, William Hodgkinson, and James N. Corothers, each being first duly sworn, depose and say that they were members of the jury who rendered a verdict in the case of John Murphy v. Isaac A. Murphy, in the district court in and for said county and territory, on the twenty seventh day of November, 1888; that, in considering what verdict to render in said case, the jury agreed that a verdict of about two dollars (2) in favor of the defendant would be proper and correct, but, through the mistake and misunderstanding of said jurors, a verdict of six hundred and ninety dollars ($690) in favor of the defendant was rendered. The deponents further say that said mistake and accident happened in this way: The plaintiff in the above mentioned action claimed there was due him from the defendant, on two promissory notes, the sum of six hundred and twenty-five dollars, ($625,) with interest. The defendant set up a counter-claim of two thousand one hundred and sixty dollars, (2,160,) for work and labor performed. After considering the evidence, said jurors agreed to offset the plaintiff’s notes, and give the defendant about two dollars ($2) over and above said notes, making a sum total of six hundred and ninety dollars, ($690.) deducting therefrom the amount the plaintiff claimed, left a balance in favor of the defendant of about two dollars, ($2;) but in framing their verdict the said jurors disagreed, some claiming a verdict reading six hundred and ninety dollars $690) in favor of the defendant would express their intention properly, and some two dollars, ($2.) After some discussion, the majority concluded the first would be correct, but instructed their foreman to ask the advice of the court on the matter before delivering the verdict. This the foreman attempted to do, but, as the deponents verily believe, he, through some misunderstanding, failed to obtain the information wanted, and the verdict remains as first written. The deponents further say that, believing the court had understood the foreman in his attempt to get the information required, and that the court had decided that the verdict as written conveyed the meaning intended, they answered ‘Yes’ to the question if it was their verdict. The deponents further say that the verdict rendered was not the one intended; that the result was brought about by accident, and through mistake; and, further, that the evidence given the case was insufficient to justify the verdict rendered.

“C. C. Metcalf, Jas. E. Riley, D. O. Crooks, H. P. Brandt, Wm. Hodgkinson, Thos. Rickard, Allen Gould, H. C. Aldrich, J. P. Winter, C. H. Wangsness, John Fortune, James N. Corothers.”

A bill of exceptions was settled on the 27th day of March, 1889, being the evidence introduced, and exceptions taken during the trial, together with the notice of motion for new trial, and the affidavit of jurors, upon the record of the court. At the regular April term, the motion for a new trial was brought on for hearing. The defendant moved that the foregoing affidavit be stricken from the files and disregarded, upon the ground that said affidavit was improper, in-competent, and inadmissible, and contrary to law. This motion was sustained, and the affidavit was stricken from the files. To the granting of this motion, plaintiff excepted. The motion for a new trial was heard, and was overruled and denied, to which order of the court plaintiff excepted. A judgment was then rendered in accordance with the verdict, and an appeal duly taken. A large number of assignments of error was filed, but, for the purpose of fully reviewing the case, these may be grouped under two heads:

(1) The errors committed on the hearing of the motion for a new trial in denying the same, and granting, the order striking the affidavit of the jurors from the files of the case.

(2) The errors of law committed upon the trial in refusing to direct a verdict for plaintiff as requested upon the trial, and also in the law of the case as given to the jury by the court.

1. As to the first of these alleged errors, it has been settled upon sound considerations of public policy that the testimony of jurors is inadmissible in support of a motion to set aside a verdict on the ground of mistake, irregularity, or misconduct of the jury, or of some one or more of the panel. This rule is conceded by counsel for appellant, but he insists that in the present case the mistake which is proved by the testimony of the jurors is of a different character and nature from those from which the general rule emanated; that it is not one connected with the consultation of the jury, or the mode in which the verdict was arrived at or made up. No fact or circumstance is offered to be proved which occurred prior to the determination of the case by the jury, and their final agreement on the verdict which was to be rendered by them. But the evidence of the jurors is offered only to show a mistake, in the nature of a clerical error, which happened after the deliberations of the jury had ceased, and they had actually agreed upon their verdict. The error consisted not in making up their verdict on wrong principles, or on a mistake of the facts, but an omission to state correctly in writing the verdict to which they had honestly and fairly arrived; in other words, a case of a mere formal and clerical error, which, despite the general rule, the court ought to interfere to correct, in order to protect the rights of parties. This contention on the part of the appellant seems to be just and right, and highly salutary and reasonable, and we should be inclined to hold with him if it were not for the adjudications of a court of the highest standing and ability to the contrary, viz., the supreme court of California, the statutes of which state upon new trials are identical with our own. While we do not wish to be understood that the decisions of that court are conclusive upon us in such case, yet, when we are asked lo make an exception to a general and unreversed rule, it will be safest, to say the least, to make these exceptions as few as possible, that the rule may not be obliterated in time by the numerous exceptions that may be made to govern special cases. The statutory grounds upon which the affidavit of jurors is permitted to be heard are:

“Whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any...