Robert v. Brooks

23 Minn. 138, 1876 Minn. LEXIS 103

• Court: Supreme Court of Minnesota
• Decided: October 10, 1876
• Status: Published

Opinion

Gileillan, C. J.

There is but a single question in this case. The suit was commenced before a justice of the peace, and tried with a jury. After the evidence was in, and arguments of counsel, the jury retired under charge of an officer, without any oath having been administered to him for that purpose, and afterwards came in with a verdict for plaintiffs. Both parties appear to have been present, and no notice was taken, at the time the jury retired, of the omission to administer the oath to the officer; but, when the jury came in, the defendants objected to receiving the verdict because of such omission.

The statute (Gen. St. c. 65, § 56) requires that the-officer shall be sworn in such cases. This requirement is not, however, a matter affecting the jurisdiction; it is a, provision regulating the proceedings upon the trial after the jurisdiction has attached. Like all provisions not governing-the jurisdiction, but only regulating the proceedings under the jurisdiction acquired, compliance with it may be waived! by the parties. Their consent to waive it is presumed, unless compliance is insisted on at the time. By failing to make the objection at the time the jury retired, so that the justice could at Qnce correct the omission, the defendants waived it.

Judgment affirmed.