State ex rel. Nicholson v. Rombauer

• Citation: 44 Mo. 590
• Parties: STATE OF MISSOURI ex rel. DAVID NICHOLSON, Relator, v. R. E. ROMBAUER, Respondent.
• Decision Date: 31 October 1869
• Court: United States State Supreme Court of Missouri

44 Mo. 590

STATE OF MISSOURI ex rel. DAVID NICHOLSON, Relator,

v.R. E. ROMBAUER, Respondent.

Supreme Court of Missouri.

October Term, 1869.

Petition for mandamus.

Strong, for relator.

I. A verdict responsive to the issues should be received and recorded. (State v. Ostrander, 30 Mo. 13; State v. Schoenwald, 31 Mo. 155, 158; State v. Arrington, 3 Murphy, 571; Moody v. McDonald, 4 Cal. 297; Russell v. Wheeler, 1 Hemp. 3.) An unintelligible verdict may be set aside on motion. (Ford v. Ford, 3 Wis. 399.)

II. Mandamus is a proper remedy in this case. (Pratte v. Cabanne, 12 Mo. 194; Boyce's Adm'r v. Smith's Adm'r, 16 Mo. 317; Leahy v. Dugdale, 41 Mo. 517.)

III. A verdict will not be set aside when it is according to the law and evidence, properly understood, even though it may be contrary to the instructions given by the court. (Van Vacter v. Brewster et al., 1 Sm. & M. 410.)

IV. A verdict which the court can understand, is good, though it may be informal. (Jones v. Julian, 12 Ind. 274.)

V. A verdict can not be amended by the court in matters of substance. (Wallace v. Hilliard, 7 Wis. 627.)

Lackland, Martin & Lackland, for respondent.

I. Mandamus will lie only where the act to be done is purely ministerial, and nothing like judgment or discretion in its performance is left to the officer. (United States v. Guthrie, 17 How. 284; 12 Peters, 524; 14 Peters, 497; 6 How. 92; 1 Manning, 359; 23 Mo. 499; 19 Johns. 259; 5 Ohio, 529; 8 Ind. 345; 14 Ohio, 322; Tapping on Mandamus, 65; The King v. The Justices of Monmouth, 7 Dowl. & Ryl. 334.) The superior court examines into the proceedings to see if the act i within the discretion of the judge, and no further. It can not restrain or control that discretion. (Commonwealth v. Justices of the Court of Sessions, 5 Mass. 437; Meacham v. Austin, 5 Day, 233.)

II. Mandamus will not issue to obtain the opinion of this court upon a matter of law. It is an extraordinary remedy for the purpose of justice alone. (Tapping on Mandamus; Williams v. Judge of Cooper County Court, 27 Mo. 225, and authorities there cited.)

III. The entry of the verdict would be of no avail to the relator, and therefore this court will not order it to be done. (Commonwealth v. Commissioners of Lancaster County, 6 Binney, 5; Dodd v. Miller, 14 Ind. 433; Tapping on Mandamus, 67; 8 Ind. 345.)

IV. Mandamus will not be awarded in any case admitting of another legal remedy, as, in this case, by appeal. ( Ex parte Goolsby, 2 Grattan, 575; People v. Judge of Branch Circuit Court, 1 Doug. 319; Williams v. Judge of Cooper County, 27 Mo. 225; 6 Iowa, 456.)

V. Mandamus will issue only where the relator has a clear and undoubted right to have the act performed. (Williams v. Judge of Cooper County, 27 Mo. 225; Tapping on Mandamus, 65; People v. Hatch, 33 Ill. 9, 123; Morris v. Ten Eyck, 2 N. Y. Leg. Obs. 9; 11 Iowa, 505; 14 Iowa, 501; 2 Barb. 566; 5 Mass. 437; 5 Day, 233; 10 Mich. 14, 263; 37 Barb. 343; Ex parte Bassett, 2 Cow. 458; Proprietors of Kennebeck Toll Bridge, petitioners, 2 Fairfield, 263; Commonwealth v. Justices of the Court of Sessions, 5 Mass. 437; Bacot v. Keith, 2 Bay, 466.)

VI. Courts have control over verdicts, and may set them aside or refuse to receive them when they are contrary to law or against the evidence. (Commonwealth v. Justices of Court of Sessions, 5 Mass. 437; Ex parte Bassett, 2 Cow. 458; Morris v. Ten Eyck, 2 N. Y. Leg. Obs. 9; Proprietors of Kennebeck Toll Bridge, petitioners, 2 Fairfield, 263; Walker v. Smith, 1 Washb. 202; Bryant v. Com. Ins. Co., 13 Pick. 543; 2 Bay, 466; McGrath v. Lorton, 2 McCord, 26; Bell v. Hutchinson, id. 409.)

WAGNER, Judge, delivered the opinion of the court.

The relator prays this court to grant a peremptory writ of mandamus against the respondent, who is one of the judges of the St. Louis Circuit Court, to compel him to receive and record a verdict rendered by a jury.

It appears that a suit was instituted in the Circuit Court by one McDonough against the relator, claiming damages for injuries sustained in consequence of a wall giving way and falling. After the evidence was submitted and instructions given by the court, the jury retired to consider of their verdict, and, upon consultation thereon, returned with the following: “We, the jury, find for the plaintiff, and assess his damages at one dollar and costs.” [[[[[Signed] “L. Leming, foreman.” This the court refused to receive, because it was deemed contrary to the evidence and law as given by the court. The jury again retired in obedience to the orders of the court, and, after some time spent in further consultation, failed to agree upon any other verdict, and were accordingly discharged.

The question is, whether the Circuit Court, of its own mere motion, has the right to reject a verdict, and refuse to have it recorded, because it is considered as contrary to the evidence and against the law. It must be conceded that the practice is unusual, and not in consonance with the usual course adopted in this State, where the verdict is against the law and the evidence.

The uniform mode which has always prevailed in this State, where the verdict is sensible, consistent, and responsive to the issue, is to receive and record it, and then to set it aside on motion and grant a new trial, where it is against the instructions of the court, or not sustained by the evidence. Where a verdict of a jury is merely informal, the court may put it in proper form. (Henley v. Arbuckle, 13 Mo. 209.) A substantial omission in the verdict of a jury may be supplied by the court, with their consent, so as to make it conform to their intention; or the jury may change their verdict, if they find they have made a mistake, at any time before it is finally received by the court.

In England, in an early period, when the courts to a great extent controlled the verdict of juries, it was the common practice, where the court considered the verdict manifestly against the evidence, before the verdict was recorded, but not after, to send the jury back and make them reconsider the case. This practice has prevailed to a certain degree in some of the American States, where the English practice permitting the court to advise the jury, by orally commenting on and summing up, has been adhered to.

In Blackley v. Sheldon, 7 Johns. 32, the action was trover, to which the defendants pleaded not guilty, and there was a trial before a jury. The jury having agreed on their verdict, returned into court and delivered the same in writing, by which they found for the defendant. The court, without publishing their verdict or making it known, informed the jury that, in its opinion, they had mistaken the evidence, and requested them to reconsider their verdict. The jury retired, and soon after requested to have a witness re-examined, and the witness was re-examined in the presence of both parties, and without objection by either. The jury then brought in a verdict in writing in favor of the plaintiff, on which judgment was given. The Supreme Court sustained the proceeding, and said that the law was well settled that before a verdict was recorded, the jury might vary from the first offer of their verdict, and the verdict which was recorded should stand, and that there were many cases in the books of a jury changing their verdict immediately after they had pronounced it in open court, and before it was received and entered. The court then refers to the old English authorities. (Dyer, 204; Plowd, 209; Saunders v. Freeman, Co. Litt. 227, note b.)

But the ground on which the decision is based is clearly exhibited in the concluding paragraphs of the opinion. “If the verdict be delivered in writing, as it was here, the justice had a right to permit the verdict to be taken by the poll, and the jury had a right to vary from their first finding. They had a right to retire and reconsider, and all that the justice did in this case was to request the jury to reconsider their verdict. They might have refused to reconsider, and have insisted upon adhering to their first verdict, but they consented to reconsider. It was their voluntary act, and one which they had a right to do. There was nothing, then, erroneous in the conduct of the justice. The verdict received and recorded was the only one to be regarded, and, consequently, the judgment below ought to be affirmed.”

In that case, it will be perceived, there was no rejection of, and no absolute refusal to receive, the verdict, but a...