§ 25-1123 — Verdict; form; correction

Nebraska § 25-1123

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury before they are discharged, be corrected by the court.

Legislative History

Source: R.S.1867, Code § 291, p. 443; R.S.1913, § 7862; C.S.1922, § 8806; C.S.1929, § 20-1123; R.S.1943, § 25-1123. Annotations: 1. Procedure 2. Irregularities 3. Amendment 4. Miscellaneous 1. Procedure Provision that verdict be read by clerk to jury and inquiry made whether it is their verdict is directory merely. Bryan v. Manchester, 111 Neb. 748, 197 N.W. 425 (1924). This section applies only to case where juror dissents when polled; it does not deprive court of power to send jury out again to reconsider verdict which erroneously attempts to apportion damages between defendants jointly liable. Forslund v. Swenson, 110 Neb. 188, 192 N.W. 649 (1923). Court cannot disregard verdict and enter such judgment as the evidence warrants; where verdict is not sustained by evidence, remedy is motion for new trial. Kenesaw Mill & Elevator Co. v. Aufdenkamp, 106 Neb. 246, 183 N.W. 294 (1921). Objection to form of verdict is to be taken when rendered, except when incomplete or material issues are ignored. Wiruth v. Lashmett, 85 Neb. 286, 123 N.W. 427 (1909). It is not error for foreman to sign verdict in open court. Clough v. State, 7 Neb. 320 (1878). Where the jurors are polled by the court and discovered to be in disagreement, a jury verdict form incorrectly signed by all 12 jurors is not a defect of form only. Bailey v. AMISUB, 1 Neb. App. 56, 489 N.W.2d 323 (1992). 2. Irregularities The requirement that assent occur before a jury is discharged is to assure that the jury is assembled together and agrees that there was in fact a defect in the form of its verdict and is met by reassembly of the jury. Harmon Cable Communications v. Scope Cable Television, 237 Neb. 871, 468 N.W.2d 350 (1991). Defects in a verdict which are matters of substance must be corrected before the jury is discharged; therefor, the trial court could not reassemble the jury, interrogate it as to its intended verdict, and then modify the amount of the verdict. Eich v. State Farm Mut. Automobile Ins. Co., 208 Neb. 714, 305 N.W.2d 621 (1981). Mere irregularities, not objected to, are waived. Jones v. Driscoll, 46 Neb. 575, 65 N.W. 194 (1895). A verdict, "we the jury find for plaintiff," will not authorize judgment for any sum whatever. Bowers v. Rice, 19 Neb. 576, 27 N.W. 646 (1886). Verdict need not be entitled. Morrissey v. Schindler, 18 Neb. 672, 26 N.W. 476 (1886). Verdict is not to be rejected because jury adds provisions for costs; such words are mere surplusage. McEldon v. Patton, 4 Neb. Unof. 259, 93 N.W. 938 (1903). 3. Amendment Defective verdict may be amended by jury or court with consent of jury. Davis v. Neligh, 7 Neb. 78 (1878). 4. Miscellaneous In action by servant against master and foreman jointly, verdict against master alone will not be set aside because not also against foreman, where principal negligence was that of master. Usher v. American Smelting & Refining Co., 97 Neb. 526, 150 N.W. 814 (1915). The verdict of a jury whose finding is based upon conjecture and not on evidence cannot be permitted to stand. Sovereign Camp of the Woodmen of the World v. Hruby, 70 Neb. 5, 96 N.W. 998 (1903).