Schoolfield v. Brunton

• Decision Date: 04 June 1894
• Citation: 20 Colo. 139,36 P. 1103
• Parties: SCHOOLFIELD v. BRUNTON et al.
• Court: Colorado Supreme Court

36 P. 1103

20 Colo. 139

SCHOOLFIELD v. BRUNTON et al.

Supreme Court of Colorado

June 4, 1894

Error to Custer county court.

Action in a justice court by Henry Brunton and another against W. J Schoolfield. From a judgment, on appeal to the county court for plaintiffs, defendant brings error. Affirmed.

This action was originally instituted before J. S. Truex, a justice of the peace, on the 28th day of June, 1890. Summons was served on the defendant June 30, 1890, made returnable on the 5th day of July, 1890. On that day an affidavit for a change of venue was filed in behalf of plaintiffs, and the change of venue granted to one L. D. Jerome, a justice of the peace, and the papers in the case given to the constable, A W. Hendricks, to be delivered. It appearing that L. D. Jerome had removed from the county, the constable delivered the papers to William B. Wadsworth, another justice of the peace and they were filed in his office on the 12th day of September, 1890. A notice was served upon defendant to appear before said justice on the 15th day of September, 1890. On that day, defendant entered a special appearance for the purpose of moving to dismiss the action for want of jurisdiction. The motion to dismiss being overruled defendant refused to appear for trial. Testimony was then heard by said justice, and judgment rendered for the sum of $100 and costs against defendant. Defendant appealed from this judgment to the county court of Custer county, and on the 1st day of December, 1890, entered a special appearance in that court, and filed his motion to dismiss the action for want of jurisdiction. Plaintiffs failing to appear, cause was continued, upon motion of defendant's counsel. On the 1st day of July, 1891, the motion to dismiss was overruled. Afterwards, by consent of all the parties, the cause was set for trial at the hour of 10 o'clock in the forenoon of March 4, 1891, and on that day tried to a jury. Upon this trial, defendant appeared by counsel, and took part in the trial. The jury returned a verdict in favor of plaintiffs, which is not preserved in the record, and were thereupon discharged. The proceedings then had, as recited in the record, are as follows: 'And thereupon it is made to appear to the court, by counsel of record for the plaintiffs, that the verdict returned is insufficient in form, and, it further appearing that none of the jurors have retired from the court room, it is considered and ordered by the court that the order discharging the said jury be, and it is, revoked, and the said jury is immediately recalled for the purpose of reforming the said verdict; and thereupon the said jury retire again from the court, in charge of the sworn officer, and after a brief space of time they return again into court, are again polled by the clerk of this court, and present their verdict, which is in words and figures following: 'We, the jury in the aboveentitled cause, find the issues for the plaintiffs, and assess their damages at eighty dollars and costs.'' Thereupon, a motion for a new trial was filed, specifying, among other grounds, misconduct on the part of the jury in arriving at the amount of their verdict, in that each juror named a sum, which several sums were added together, and the aggregate divided by the number of jurors, with the agreement in advance that the result ascertained should be adopted as the amount of the verdict. In support of the motion, plaintiffs filed the affidavits of two...