Trout v. West

29 Ind. 51

• Court: Indiana Supreme Court
• Decided: November 15, 1867
• Status: Published

Opinion

Ray, J.

This was an action by the appellees for goods sold and delivered to the appellants. On the trial, a motion was made to suppress certain depositions because the name of the clerk of the county, before whom they had been taken, was signed to the certificate by his deputy. The court overruled the motion, and such, action, we have held in another ease, furnishes no ground for reversal. Trout et al. v. Williams, ante, p. 18.

After the jury had received the instructions of the court, it was agreed by the attorneys and ordered by the court, that the jury, if they agreed upon a verdict, might seal the same and deliver it to the clerk, and the court thereupon adjourned from Saturday until Tuesday. Upon the meeting of court, the clerk gave notice that the finding had been delivered to him on Saturday evening, and that the jury had thereupon separated. The verdict was then read, and was in these Words: “The jury find for the plaintiff. John Burgess, foreman.” ¡

A motion was made for a venire de novo by*the appellants, which was overruled, as also a motion for judgment for appellants for costs. The persons who had composed the jury were thereupon sent for, and were directed to retire to their jury room and complete their finding. They after-wards returned a verdict, fixing the amount of damages, and judgment was rendered tliereon.

S. P. Oyler and D. W. Howe, for appellants. D. D. Banta and C. Byfield, for appellees.

It seems to us, that the effect of the agreement of the counsel, and the order of the court made in pursuance thereof, was to substitute the clerk as the person who should receive the verdict for the court, and that upon the delivery of such finding to him, and the separation of the members of the jury and returning to their several homes, their duties as jurors ceased. The order of the coui’t did not contemplate that they should be present as a jury when the court met. It does not appear that they were charged to avoid placing themselves in situations where they might be exposed to influences calculated to prejudice their minds as jurors. We do not think it would be a safe precedent to sustain a Arerdiet arrived at under such circumstances. The general denial was. in, and proof of value and amounts was required, and there is nothing, therefore, by which the court could, by calculation, have made the first verdict sufficient. The motion for a venire de novo should have been sustained.

The judgment is reversed, with costs.