D. M. Osborne & Co. v. Morris

StrahaN, C. J.

The sole question in this case is as to the power of the trial court to amend the verdict after the jury was discharged. Counsel for appellant contends that the only power the court has over the verdict is conferred by sections 211, 212, Hill’s Code, and that these sections have abrogated and taken away the common law power of courts over verdicts; and that whatever authority a court can now exercise over a verdict must be done under and pursuant to these two sections of the code. Section 211 is as follows: “When a verdict is given and before it is filed, the jury may be polled on the request of either party, for *369 which purpose each shall be asked whether it be his verdict. If any juror answer in the negative, the jury shall be sent out for further deliberation. If the verdict be informal or insufficient, it may be corrected by the jury under the advice of the court or the jury may again be sent out.” And section 212 of the code provides: “ When the verdict is given and is such as the court may receive, and if no juror disagree or the jury be not again sent out, the clerk shall file the verdict. The verdict is then complete, and the jury shall be discharged from the case.”

Counsel for appellant contends that these sections provide a method of changing the verdict and putting it in proper form, and being a remedy provided by statute, it is to be taken as the exclusive and only method. But this is not within the principle contended for. The right to amend a verdict is of common law origin and very ancient. (Doe v. Perkins, 3 T. R. 749; Henley v. Corporation, 6 Bing. 100; Richardson v. Mellish, 3 Bing. 334; Mellish v. Richardson (in error), 7 Barn. & Cress. *819; Chapmans. Gale, 2 Lev. 22.) And if it be conceded that these sections might furnish a sufficient remedy if the attention of the court were drawn to the defect in the verdict at the time it is brought into court and before the jury is discharged, still I do not think they could be so construed as to take away the power of amendment as it existed at common law. Its evident object was to enable the court wherever it was practicable to correct such errors in the verdict as escaped the vigilance of those interested in the trial until after the jury had separated. To hold that this power was taken away from the courts by these sections would be to deprive them of a most important power, which they have exercised time out of mind, and always in furtherance of justice. The authorities fully illustrate how convenient and salutary the rule is in practice, and the numerous cases in which it has been applied. (Phillips v. Kent, 3 Zab. 155; Murphy v. Stewart, 2 How. 263 ; Stewart v. Fitch, 31 N. J. L. 17; Clark v. Lamb, 8 Pick. 415 ; 19 Am. Dec. 332 ; Humphrey v. Mayor, etc. 48 N. J. L. 588; *370 Koon v. Ins. Co. 104 U. S. 106 ; Schweitzer v. Connor, 57 Wis. 177 ; Burlingame v. Central R. of Minn. 23 Fed. Rep. 706; Riley v. Williams, 123 Mass. 506 ; Cohn v. Scheuer, 115 Pa. St. 178; Dalrymple v. Williams, 63 N. Y. 361 ; 20 Am. Rep. 544 .)

The briefest reference to the facts of' this case will show the importance of the principle under consideration. By oversight, no doubt, counsel united the defendants Deyoe & Robson with Morris in an answer; but the new matter therein was the answer of Morris alone. He alone rendered the service, and he only was entitled to compensation;’ and yet the jury returned a verdict in favor of all the defendants for forty dollars. It is too plain for argument that this was a mere oversight, and to reverse the judgment when the correction has already been made by the trial court would certainly be sanctioning and approving a degree of refinement and technicality not at all in harmony with the purposes for which courts are instituted.

Let the judgment appealed from be affirmed.