Nickelson v. Smith

• Citation: 14 P. 40,15 Or. 200
• Parties: NICKELSON v. SMITH.
• Decision Date: 24 May 1887
• Court: Oregon Supreme Court

14 P. 40

15 Or. 200

NICKELSON v. SMITH.

Supreme Court of Oregon

May 24, 1887

Appeal from Wasco county.

Geo Watkins, for appellant.

J.T Dufur, for respondent.

STRAHAN J.

The appellant here originally commenced an action against the respondent before W.E. MCARTHUR, Esq., justice of the peace for Dalles precinct, in Wasco county, Oregon, to recover a balance alleged to be due him of $52.88. The defendant filed a counter-claim, amounting to $76.09, and demanded a judgment for $24.21. Issue having been duly taken by the reply on the new matter contained in the answer, the defendant in that proceeding demanded a jury. What occurred after the evidence was closed, and the cause was argued by counsel, is fully disclosed by the record:

"The case was then submitted to the jury, and they retired under a sworn bailiff. At about 7:30 o'clock P.M. the jury having been out about one hour, returned into court,--Geo. Watkins, Esq., one of plaintiff's attorneys, being present,--and presented to the court what purported to be their verdict, a certain writing of which the following is a copy, to-wit:

" 'JUSTICE'S COURT FOR DALLES PRECINCT, COUNTY OF WASCO, STATE OF OREGON.

" 'Wilson B. Smith, Plff., v. J.C. Nickelson, Deft.

" 'We, the jury impaneled to try the above cause, find for the defendant, and assess his damages at $18.99.

[Signed] " 'H. SOLOMON.

" 'C.W. JONES.

" 'G.F. SETTLEMIRE.

" 'A.J. SIMMONS.

" 'G.W. WERLIN.'

--Which verdict was received and filed November 27, 1885. The jury then explained in open court that they intended to allow the defendant the sum of $18.99 as a counter-claim to the plaintiff's cause of action, thereby reducing plaintiff's claim against the defendant, as set forth in his complaint, to the sum of $33.89, which amount they found that the plaintiff was entitled to recover from the defendant in this action. The paper purporting to be the verdict of the jury not being actually the verdict found by the jury, and the court not being advised what course should be pursued in the matter, continued the case until to-morrow morning, at 10 o'clock A.M., for advisement. It was ordered that the jury be present at that time. In the meanwhile the jury were allowed to separate, but were not discharged.

"W.E. MCARTHUR, Justice of the Peace." "NOVEMBER 28, 1885.

"The jury all being present, and the attorneys for the plaintiff and defendant also being present, the court submitted the case to the jury, against objections of defendant's counsel; and, after deliberation, they rendered their verdict in open court; all parties in interest being present, or represented by learned counsel. The following is a copy of the verdict, to-wit:

" 'IN JUSTICE'S COURT FOR DALLES PRECINCT, WASCO COUNTY, STATE OF OREGON.

" 'Wilson B. Smith, Plaintiff, v. J.V. Nickelson, Defendant.

" 'We, the jury in the above-entitled action, find for the plaintiff, and assess his damages at $33.89 cents.

H. SOLOMON, Foreman.

" 'G.W. WERLIN.

" 'C.W. JONES.

" 'A.J. SIMMONS.

" 'G.F. SETTLEMIRE.'

--Which verdict was received and filed November 22, 1885. Thereupon the jury were discharged. WM. E. MCARTHUR, Justice of the Peace."

From the record of the justice it further appears that the plaintiff moved for judgment on said last-named verdict in his favor for $33.89; and the defendant at the same time moved for a judgment in his favor for $18.99 on the alleged verdict of the preceding day; and the court, after hearing the argument of counsel in favor of and against said respective motions, still being in doubt what judgment ought to be given thereon, took both of said motions under advisement. Thereafter, on the twenty-second day of May, 1886, said justice overruled the defendant's motion, and granted the motion of the plaintiff.

The defendant, having demanded a jury, had no right of appeal. Gen.Laws, p. 478, § 120. The defendant accordingly sued out a writ of review, and removed the record of the justice into the circuit court. That court annulled the judgment of the justice, and remanded the cause for a new trial, from which last-named judgment this appeal is taken. Numerous errors are assigned in the notice of appeal. The only errors material to be considered are those relating to the action of the court in reversing the judgment of the justice, and in remanding the cause for a new trial.

The first question which naturally presents itself here for our consideration is, which of the two papers presented by the jury to the justice is their verdict?

Section 7, p. 463, Gen.Laws, provides, in substance, for the same course of procedure in a justice's court as prevails in a court of record, "except as in this act otherwise specially provided." Section 210 of the Civil Code, thus made applicable, provides: "When the verdict is given and is such as the court may receive, and if no juror disagree, or the jury be not again sent...