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“Is this your verdict?". And the Court cannot be required to have the question put: “Is this your verdict against each and both of the defendants ?Labar v. Koplin, 4 Coms. 547.

§ 172. Informal or insufficient verdict may be corrected under advice of the Court.

If the verdict be informal or insufficient, in not covering the whole issue or issues submitted, the verdict may be corrected by the jury under the advice of the Court, or the jury may be again sent out.

1. It is competent for the Court to instruct the jury to amend their verdict as to form, not affecting the substance, and in such manner as to be unexceptionable in law. Trurbody v. Jacobson, 2 Cal. 284.

2. The Court may amend the verdict of a jury when it is defective in something merely formal, and which has no connection with the merits of the cause, where the amendment in no respect changes the rights of the parties. Perkins v. Wilson, 3 Cal. 139.

3. The verdict may conform to the issues. If the Court, instead of having the verdict corrected by the jury, attempt to correct it by the judgment, and go beyond the verdict, it is error. Ross v. Austill, 2 Cal. 192.

4. After the jury have pronounced their verdict, they may alter and correct it, before it is received and recorded. And the Court may also send them out again to reconsider their verdict, if it appears to be a mistaken one, before it is received. 7 Johns. 32.

5. The verdict of a jury may be amended or corrected so as to conform to the facts, and to the real intentions of the jury, either by certificate of the Judge or otherwise. Where, however, the slightest doubt exists as to what transpired on the trial, or if any exist that the whole case has been disposed of by the Court and the jury, an amendment should not be allowed. Burhaus v. Tibbits, 7 How. Pr. R. 21.

$ 173. Verdict shall be recorded in full in the minutes.

When the verdict is given, and is not informal or insufficient, the Clerk shall immediately record it, in full, in the minutes, and shall read it to the jury, and inquire of them whether it be their verdict. If any juror disagree, the jury shall be again sent out; but if no disagreement be expressed, the verdict shall be complete, and the jury shall be discharged from the case.

1. The Court shall direct the verdict of a jury to be recorded as rendered by it. That should be treated as the verdict which the jury actually brings in. Moody v. JcDonald, 4 Cal. 297.

2. Where an informal verdict is received and recorded by consent of the plaintiff, and judgment in form is afterwards entered thereon, on appeal the informality will be disregarded. Treadwell y. Wells, 4 Cal. 263.

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ARTICLE III.

THE VERDICT.

Sec. 174. General and special verdicts defined.

175. When general or special verdicts may be rendered. 176. Verdict in actions for the recovery of money, or on

establishing counter claim.
177. Verdict in actions for the recovery of specific personal

property.
178. Entry of verdict.

§ 174. General and special verdicts defined.

The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the Court. The special verdict shall present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact shall be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.

N. Y. Code, < 260. 1. The verdict must be confined to the matters put in issue by the pleadings. Benedict v. Bray, 2 Cal. 256 ; Truebody v. Jacobson, Id. 285.

2. The verdict may conform to the issues. If the Court, instead of having the verdict corrected by the jury, attempt to correct it by the judgment, and go beyond the verdict, it is error. Ross v. Austill, 2 Cal. 192.

3. The verdict of a jury is a matter of record, and copies thereof may be sufficiently authenticated by the certificate of the Clerk. Reynolds v. Harris, 8 Cal. 618.

4. The report of a referee on the facts of a case will be considered the same as the verdict of a jury. Walton v. Minturn, i Cal. 362.

5. A stipulation that a verdict should be entered in favor of the defendant, sar, ing to the plaintiff the same rights which he would have had in case a jury had actually rendered a verdict for the defendant, should be regarded in precisely the same light as a verdict, and be followed by the same legal results. Suñol v. Hepburn, 1 Cal. 258.

6. A verdict arrived at, where each juror sets down a sum according to his own judgment, and the aggregate should be divided by twelve, and the quotient should be returned as the verdict, is irregular, and will be set aside, unless such means were merely adopted to arrive at a proper result, and they subsequently agreed on that sum. Wilson v. Berryman, 5 Cal. 45; Conklin v. třill, 2 How. Pr. 6.

7. A joint verdict against the defendants answering and a defaulting defendant, is conclusive against all the defendants, when a separate verdict has not been demanded. Anderson v. Parker, 6 Cal. 197.

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8. The verdict should comprehend the whole issue or issues submitted to the jury, otherwise the judgment on the verdict will be subject to be reversed. 21 Wend. 19, 90;

Ld. Raym. 324. 9. Verdict conclusive upon facts found. The finding of a jury, or of the Court below, acting as a jūry, upon a question of fact, is final and conclusive. Perry v. Cochran, 1 Cal. 180.

10. A general verdict does not operate as an estoppel, except as to such matters as were necessarily considered and determined by the jury. A verdict is never conclusive upon iminaterial or collateral issues. McDonald v. Bear River and Auburn Water and Mining Co., 15 Cal. 145.

11. Where a verdict is general, its effects will be limited to such issues as necessarily controlled the action of the jury. Kidd v. Laird, 15 Cal. 161.

12. A verdict found on any fact or title distinctly put in issue, is conclusive in another action between the same parties, or their privies, in respect of the same fact or title. Id.

13. But the fact or title must be material and relevant; must be distinctly in issue ; must be tried by the jury, and constitute the basis of their verdict; and, unless specially found, must have been necessarily passed upon by the jury. Id.

14. A special verdict settles the facts, and the Court by its judgment pronounces the conclusion of law upon the facts found. If the Court errs in this respect, the error may be reviewed without any motion for a new trial; but the right to correct the verdict does not depend upon the judgment, and the steps necessary for that purpose must be taken within the statutory time. People v. Hill, 16 Cal. 117.

15. The party in whose favor a judgment is rendered on a special verdict must move for a new trial, if he is not satisfied with the verdict, as the latter must otherwise be conclusive upon the facts in the appellate Court. Garwood v. Simpson, 8 Cal. 108; Duff v. Fisher, 15 Id. 380.

16. If the statement discloses no refusal on the part of the Judge of the Court below to charge the jury on any matter submitted, nor is any erroneous charge assigned as error, the verdict of the jury must be considered as having settled all the facts of the case.

George v. Law, i Cal. 364. 17. The verdict of a jury in a chancery case is only advisory to the Chacellor of this Court. Still v. Saunders, 8 Cal. 281.

18. In chancery cases, the Court below may disregard the verdict of a jury. Gode v. Smith, i3 Cal. 84.

19. Effect of verdict on defects in pleading.-The general rule as to the effect of a verdict upon defects in pleading is, that whatever facts are not expressly stated, which are so essential to a recovery that without proof of them on the trial a verdict could not have been rendered under the direction of the Court, then the want of the express statement is cured by the verdict, provided the complaint contains terms sufficiently general to comprehend the facts, in fair and reasonable intendment. Garner v. Marshall, 9 Cal. 268.

20. A defective allegation of a fact may be cured by default or verdict, but not 80 the entire absence of any allegation whatsoever. Hentsch v. Porter, 10 Cal. 555.

21. Where a declaration states a condition precedent, and fails to aver performance, the defect must be urged on demurrer; it comes too late after verdict. Happe v. Stout, 2 Cal. 461.

22. An omission to allege delivery, in an action on a bond, can be taken advantage of only on demurrer, and not after verdict. Garcia v. Satrustegui, 4 Cal.

23. Defects in an indictment are not cured by verdict, but may be taken advantage of by motion in arrest of judgment. People v. Wallace, 9 Cal. 32.

24. The facts which will after verdict be presumed to have been proven, are those which, although entirely omitted to be stated in the complaint, are so connected with the facts alleged, that the facts alleged cannot be proved without proving the facts not alleged. Addington v. Alden, 11 Wend. 374; Brown v. Ilarmon, 21 Barb. 512.

25. Jurors cannot impeach their own verdict. It is a settled rule, founded upon considerations of necessary policy, that the testimony of a juryman

cannot be received to defeat his own verdict; and in a criminal case, the affidavit of a juryman, made after verdict, that he had formed and expressed an opinion before the trial, cannot be received on a motion for a new trial. People v. Baker, 1 Cal. 403.

26. The affidavit of jurors will not be allowed to contradict their verdict. Cas. tro v. Gill, 5 Cal. 40; Ambly v. Dickhouse, 4 Id. 102; Wilson v. Berryman, 5 Id. 44.

27. It seems that the testimony of the Sheriff is competent to disclose what transpires in the jury-room. Wilson v. Berryman, 5 Cal. 44.

28. Affidavits of counsel and others on information respecting the misbehavior of the jury while considering their verdict, are not admissible to impeach the verdict. People v. Hartung, 8 Abb. 132; People v. Wilson, Id. 137.

29. The appellate Court must infer in favor of the verdict below, unless error is clearly manifest. Allen v. Phelps, 4 Cal. 259.

30. Informal and insufficient verdict may be corrected. See $ 172, and notes. 31. Grounds upon which a verdict will be set aside. See § 193, and notes.

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$ 175. When a general or special verdict may be rendered.

a [1854.] In an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the Court may direct the jury to find a special verdict, in writing, upon all or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict of finding shall be filed with the Clerk, and entered upon the minutes. Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the Court shall give judgment accordingly. N. Y. Code, $$ 261, 262.

1. The Court may direct a special verdict to be entered in the action. Burritt v. Gibson, 3 Cal. 396.

2. A general verdict will conclude all parties who do not answer separately, or demand separate verdicts. Winans v. Christy, 4 Cal. 70; Ellis v. Jeans, 7 Id. 409.

3. The plaintiff in ejectment may suc one or more defendants, and they may answer separately, or demand separate verdicts; unless they do so, however, they will be concluded by a general verdict. Winans v. Christy, 4 Cal. 70.

4. In ejectment, the verdict may be joint against several defendants, without specifying their respective lots in a whole tract, where they file a joint answer which contains no averment as to the particular portion of land occupied by each, no proof being offered on the point, no damages being claimed, and the defendants being in possession. McGarvey v. Little, 15 Cal. 31.

5. A joint verdict against the defendants answering and a defaulting defendant, is conclusive against all the defendants, when a separate verdic, has not been demanded. Anderson v. Parker, 6 Cal. 197.

6. Where, on a suit against defendants as members of a quartz company, one defendant pleads that he is not a member of the company, and the finding the Court is that the allegations of the complaint are true, and that said defendant was a member of the company as to plaintiff Park, the finding supports a judg. ment for plaintiff. Park v. Hinds, 14 Cal. 418.

7. If the jury fails to find the fact of a lien, the Court cannot render a judgment essentially different from the verdict, and the judgment so far will be reversed. Walker v. Hauss-hijo, 4 Cal. 186.

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8. A special verdict settles the facts, and the Court by its judgment pronounces the conclusion of law upon the facts found. If the Court errs in this respect, the error may be reviewed without any motion for new trial; but the right to correct the verdict does not depend upon the judgment, and the steps necessary for that purpose must be taken within the statutory time. Allen v. Hill, 16 Cal. 117.

9. On the rendition of a special verdict, the trial is terminated, and notice of motion for new trial must be given within the statutory time, or the proceedings based upon such notice will be disregarded. Id.

$ 176. Verdict in actions for recovery of money, or on establishing a counter claim.

When a verdict is found for the plaintiff, in an action for the recovery of money, or for the defendant, when a counter claim for the recovery of money is established, exceeding the amount of the plaintiff's claim as established, the jury shall also find the amount

of the recovery.

N. Y. Code, \ 263. See Ø 47, “ Counter claim.”

1. The theory of the law is not that the party recover the particular note or chose in action, as is commonly imagined, but that he recovers damages for the nonperformance of the contract; and in case of failure to pay money due, the true damage is the amount of money owing, and the interest which was agreed upon. Guy v. Franklin, 5 Cal. 417.

§ 177. Verdict in actions for the recovery of specific personal property.

In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant, by his answer, claim a return thereof, the jury, if their verdict be in favor of the plaintiff, or if, being in favor of the defendant, they also find that he is entitled to a return therof, shall find the value of the property, and may, at the same time, assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property. N. Y. Code, ø 261.

1. Section one hundred and seventy-seven of the Practice Act applies only when the issues of the case have been submitted and passed on by the jury, and not to a case of judgment of nonsuit. Guiaca v. Atwood, 8 Cal. 446.

2. An officer attaching goods under civil process, is entitled to notice of the claim of a third party to the goods, and a demand for them, or he is not liable in damages to such party for such seizure and detention. Daumiel v. Gorham, 6 Cal. 44; Killey v. Scannell, 12 Id. 75.

3. In an action of replevin by W., it appeared on trial that the property sued for belonged to him and one F., a third party, and the jury returned a general verdict for the defendants, and the Court gave judgment for a return of the property to the defendants: Held, that there was no error in the judgment. Waldman v. Broder, 10 Cal. 379.

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