Livingston v. . Livingston

197 S.E. 597, 213 N.C. 797, 1938 N.C. LEXIS 200

• Court: Supreme Court of North Carolina
• Decided: June 15, 1938
• Status: Published

Opinion

Stacy, C. J.

The action of the court in respect of the verdict amounted in law to setting it aside and granting a new trial. Mitchell v. Mitchell, 122 N. C., 332, 29 S. E., 367. The second response of the jury is without legal sanction.

It is true, in Lumber Co. v. Lumber Co., 187 N. C., 417, 121 S. E., 755, upon which the court’s action is sought to be sustained, the jury, after separating over the noon recess, was allowed to reassemble and to correct an error in calculation, but that case is quite unlike this one, and rests upon a different principle. Correcting an error before the discharge of the jury is not the same as changing a verdict after its discharge for the term. Willoughby v. Threadgill, 72 N. C., 438.

“Where there has been a mistake in writing an answer to an issue, so that it does not express the actual agreement of the jury, the judge may allow them to correct it. . . . But this must be the correction of a verdict rendered, and not the rendering of a new verdict, because they were not satisfied with what they had done.” McIntosh, N. C. Prac. and Proc., p. 666.

In the instant case, the issue submitted to the jury was really a collateral one. The jurors were not primarily concerned with its effect upon the rights of the parties. They answered the issue as they intended to answer it, “Yes,”- thinking, it is true, that such answer “constituted a decision in favor of Mrs. Livingston.” But whether the case should ultimately be decided in favor of the plaintiff or Mrs. Livingston was not for them to determine. Bundy v. Sutton, 207 N. C., 422, 177 S. E., 420. The error, if any they made, was an error of law and not one of fact. Little v. Larrabee, 2 Greenleaf (Me.), 37, 11 Am. Dec., 43. They did what they intended to do, but misconceived the legal effect of their action. They were not aware of any mistake or error on their part even after the matter had been called to their attention, and not until the legal effect of the verdict was explained to them did they express any desire to change it. Alston v. Alston, 189 N. C., 299, 126 S. E., 737; Lipscomb v. Cox, 195 N. C., 502, 142 S. E., 779. See Oil Co. v. Moore, 202 N. C., 708, 163 S. E., 879; Coxe v. Singleton, 139 N. C., 361, 51 S. E., 1019.

The plaintiff is entitled to a venire de novo. It is so ordered.

Venire de novo.