State ex rel. Fuller v. Beall

67 N.W. 868, 48 Neb. 817, 1896 Neb. LEXIS 157

• Court: Nebraska Supreme Court
• Decided: June 16, 1896
• Docket: No. 8310
• Status: Published

Opinion

Post, 0. J.

This is an original application for a writ of mandamus to require tbe respondent, as judge of the district court for Webster county, to receive and enter of record the following verdict:

“J. C. Hartman, Plaintiff, v. William H. Fuller, Defendant.

“We, the jury in this case, duly impaneled and sworn, do find and say that there is nothing due either plaintiff or defendant, and the said plaintiff and defendant are entitled to bear proportionately the costs of this action.

“P. J. Spracher,

“Foreman

The foregoing verdict, as we learn from the record, was returned on the 13th day of December, 1894, in an action then pending and on trial before said court, in which John C. Hartman, as plaintiff, claimed from the defendant, William H. Fuller, the sum of $184.66 on account, and the latter sought to recover the sum of $431.33 on a similar cause of action against the plaintiff. Thereupon, according to the admission of the pleadings, “the court refused to accept or receive said verdict and refused to send said jury back to correct the said verdict, but neg'-lected and refused to receive the same and summarily discharged the said jury; that the plaintiff then and there objected and excepted to the action of the court in refusing to receive the said verdict, and insisted that the verdict as returned by the jury should be received and the clerk ordered to enter the same upon the records of said court, which the court refused to do.” It is further shown that the relator, as defendant in the above entitled action, afterward submitted a formal request for judgment upon said verdict, which, request was at a subsequent term denied and the cause continued for trial by the court, on its own motion. Although the subject is not wholly free from doubt, the inference we draw from the record is that the verdict was by the respondent held to be insufficient in form and substance to sustain a judgment for either party; but in that conclusion of the learned district judge we are unable to concur. The rule appears to be that a verdict which responds to all of the issues submitted should not be rejected on account of immaterial findings or recommendations superadded by the jury. In the verdict here set out there is a distinct and explicit finding with respect to the cause of action alleged by each party, and the attempted apportionment of the costs may be rejected as surplusage. (Parkinson v. McQuaid, 54 Wis., 473; Hancock v. Buckley, 18 Mo. App., 459; State v. Knight, 46 Mo., 83; Foote v. Woodworth, 66 Vt., 216; Tucker v. Cochran, 47 N. H., 54; Graham & Waterman, New Trials, 136.)

It remains to be determined to what extent, if at all, this court will assert its coercive power for the purpose of controlling the action of the district court in the disposition of the verdict. In Lloyd v. Brinck, 35 Tex., 1, cited by the relator, it was held that the trial court cannot upon its own motion set aside a verdict sufficient in form and responsive to the issues made by the pleadings, and that it may, by means of the writ of mandamus, be required to enter judgment in such case, notwithstanding a previous order setting aside the verdict. That case cannot, it is believed, be reconciled with Weber v. Kirkendall, 44 Neb., 766, holding that the power is inherent in the district court, as a court of general jurisdiction, to correct errors in its proceedings upon its own motion, in the absence of a request by either party to the controversy. We agree, however, with the Texas court that the true test in cases where it is sought to control the actions of judicial officers is whether the duty sought to be enforced involves the exercise of their judgment and discretion. Judge Thompson, in his work on Trials, section 2636, says: “If the verdict has been unanimously agreed upon by the jury, reduced to writing in due form, returned by the jury, and regularly presented to the court, and if for insufficient reasons the court refuses to receive and record the same, it may be compelled to do so by a mandamus sued out in a tribunal possessing superintending jurisdiction over it.” And the view thus stated finds support in the decisions of the courts, both state and national. (See State v. Knight, supra; Munkers v. Watson, 9 Kan., 668; Cortleyou v. Ten Eyck, 22 N. J. Law, 45; Haight v. Turner, 2 Johns. [N. Y.], 371; Horne v. Barney, 19 Johns. [N. Y.], 247; Ex parte Bostwick, 1 Cow. [N. Y.], 143; Hudson v. Parker, 156 U. S., 277.) The act of receiving and recording a verdict when returned by the jury is, it appears from the authorities cited, essentially ministerial, not involving the exercise of any discretion on the part of the judge,, and the duty in that regard may accordingly, in a proper case, be enforced by means, of the writ of mandamus. It follows that the writ should be allowed as prayed.

Writ of mandamus allowed.