Sowder v. Inhelder

• Decision Date: 27 December 1948
• Docket Number: 16068.
• Parties: SOWDER v. INHELDER.
• Court: Colorado Supreme Court

201 P.2d 533

119 Colo. 196

SOWDER v. INHELDER.

No. 16068.

Supreme Court of Colorado, in Department.

December 27, 1948

Error to District Court, Sedgwick County; Raymond L. Sauter, Judge.

Action by Glen Inhelder against Gene F. Sowder, a minor, appearing by Clelland F. Sowder, his next friend, for damages arising out of an automobile collision. To review the judgment defendant brings error.

Affirmed.

Rolfson & Hendricks, of Julesburg, for plaintiff in error.

Richard D. Dittemore, of Julesburg, and Austin & Konkel, of Sterling for defendant in error.

ALTER, Justice.

Glen Inhelder, hereinafter referred to as plaintiff, brought an action in the county court against Gene F. Sowder hereinafter referred to as defendant, to recover damages allegedly sustained as a result of an automobile collision. Without objection the cause was transferred to the district court, and was therein tried Before a jury, which returned a verdict for plaintiff in the sum of $372.99. Judgment having been entered on the verdict, defendant seeks a reversal by writ of error.

The specifications of points are four in number, but are consolidated, presented and argued by defendant under two subdivisions, viz: 1. 'No valid verdict was reached upon which judgment could be had.' and 2. 'The Court erred in refusing to consider the affidavits of jurors.'

1. The case was submitted to the jury on June 27, 1947, on instructions to which there was no objection. It having failed to reach a verdict at the usual time of the adjournment of the court, a conference was held between the court and the attorneys with reference to the reception of the jury's verdict in event of an agreement in the absence of the court. It was understood by the court, the attorney for plaintiff, and the clerk that in event the jury reached its verdict in the absence of the trial judge, the jurors should be brought into court and asked if they had agreed upon a verdict. If the answer was in the affirmative it should be handed to the clerk, who should read it to the jury and inquire as to their assent thereto. Upon this being done, it should be recorded, and the jurors then discharged from further service. This procedure, as understood by the trial judge, the attorney for plaintiff, and the clerk, was followed meticulously, and, in accordance with the agreement as so understood, defendant's exceptions to the verdict were to be noted, and defendant allowed sixty days within which to file a motion for a new trial. According to the affidavit of defendant's attorney on file, he had misunderstood the agreement if it was as understood by the trial judge, plaintiff's attorney, and the clerk, and avers therein that he did not know of the reception of the verdict until about July 30, which was more than thirty days after the trial had been completed. Further, upon learning of the reception of the verdict, he 'objected to receiving and recording the same, objected to entry of judgment thereon, and moved the Court to declare a mistrial.' On overruling the motion for a new trial assigning the alleged irregularity in the reception of the verdict and its recordation, the trial court stated, inter alia:

'It was my thought, as expressed to the attorneys for the plaintiff, and understood by them, that we would save the jurors the inconvenience, and the county the expense, of returning the jury in the morning, in the event they arrived at a verdict. This case was tried at a busy time for farmers. I felt there wasn't any specially good purpose to be served by bringing the five men, and this woman, who was the foreman of the jury, back to court the next morning; and that was the basis of my suggestion, though I did not make it clear enough to the attorney for the defendant. Both attorneys representing the plaintiff understood what was intended; the clerk understood what was intended; and when I left for Sterling that night, I thought that I had made it clear.

'The clerk called me on the telephone, after you had made your last visit. Mr. Hendricks, to the court house. At that time, you made some statement to the effect that you were going home, that the verdict would be a sealed one; and I think the clerk said she didn't believe that you understood what was agreed. I don't know whether you heard her remark or not. But in any event, it was impossible to contact you by phone because you had no phone. When the clerk called me on the telephone, she asked me if she understood what was intended, and she explained to me what was in her mind; and I told her that what she had related was my understanding of the agreement, and I told her that she should take the verdict, should read it to the jury, in the absence of the court, ask them if it had been agreed upon by them, and that they should then be discharged, if they assented to it.

'The clerk has since advised me that she followed those instructions to the letter. That procedure has also been outlined as having been followed in the affidavit of Mr.

Dittemore, which is on file in this case. I told the clerk to allow the defendant 60 days within which to file a motion for new trial, and to note defendant's exceptions to the verdict in order that there should be no prejudice to the defendant, and none of his rights would be jeapordized.'

The only Colorado case relied upon by defendant in support of his contention that error was committed in thus receiving the verdict is Kohn v. Kennedy, 6 Colo.App. 388, 41 P 510, decided in 1895 under the 1887 Code of Civil Procedure and amendments thereto, and the only case relied upon for construction of our Rules of Civil Procedure is Thompson v. Davis, 117 Colo. 82, 184 P.2d 133. We believe the Kohn-Kennedy case is easily distinguishable from the instant case because there a sealed verdict was returned; the names of the jurors were not called, and the jurors never were asked whether they had agreed upon a verdict although it does appear that the jurors were all in the body of the courtroom when the verdict was opened and read, but were not in their jury box. It also appears that none of the jurors voiced a dissent to the verdict when the same was read. It was held there that the court erred, and the verdict thus received could not be the basis of a valid judgment. It should be noted that in the Kohn-Kennedy case, sections 194 and 195 of the 1887 Code of Civil Procedure, governed the procedure with reference to the reception of sealed verdicts. Our Rule 47(p) and (q), Rules of Civil Procedure, '35 C.S.A., is substantially the same as sections 194 and 195, supra. There was no order for a sealed verdict here, but, assuming, as counsel for defendant contends, that the verdict was to be sealed verdict, yet,...