Munkers v. Watson

jVIaitoamtjs ; Receiving Vei'dict. Where in the trial of a cause a verdict is agreed upon by the jury and reduced to writing in due form, and brought into court by the jury, it is the duty of the court to receive and enter the verdict; and for a refusal so to do, the writof mandamus is an appropriate remedy,’ and the only one that affords adequate relief.

Original Proceedings in Mandamus. At the April Term 1871 of the Morris county district court, IJon. John IP. Watson, judge of the Fifth District, presiding, an action pending in said, court, wherein J. G. Munkers .and W. P. Tenoilliger were plaintiffs, and the M. K. & T. Railway Co. was defendant, came on for trial. A jury was impanneled and sworn, the-evidence taken,-the cause submitted to the jury, and a verdict agreed upon and returned •into court in favor of the plaintiffs. The verdict being imperfect, the jury were directed by the court to retire and ■correct it. They did so. In their absence the court was advised by defendant’s counsel that two of the jurors were biased and prejudiced against the Railway Company, and on their return the judge satisfied himself that said two jurors ■were so prejudiced; and without receiving their verdict discharged the jury. Hunkers and Terwilliger filed their petition in this court for a writ of mandamus' to compel Judge Watson to receive said verdict, etc. An alternative suit was allowed. Judge Watson, made answer, admitting the facts as alleged,, but said that he had so discharged said jury, because of said bias and prejudice on the part of two of their number, .and. “in his judicial - capacity, and in the exercise of a lawful judicial discretion.” On the in-coming of said answer, the-plaintiffs moved for peremptory writ. 1. The jury found a verdict for the plaintiffs, a fact which is both admitted and proven. The defendant, acting as Judge,, arrested the regular course of the proceeding upon the mere suggestion of counsel, and refused to receive the verdict from the jury, have it entered of record, and enter judgment upon it-Was the judge justified in pursuing this extraordinary course? The jurors upon their voir dire, the judge states, answered that they were not conscious of any prejudice or cause of prejudice towards the defendant. There is no evidence that the verdict of the jury was unjust, nor that the railroad company was prevented from having a fair and impartial,trial. 2. There wag not sufficient before the court to have enabled the court to have granted a new trial upon the reception of the verdict. The peculiar proceeding which the judge instituted, at the mere suggestion of counsel, was a proceeding which has no warrant in the statutes. Neither was it based, on any legal grounds. It was essentially a proceeding coram non judice, and void. 3. Had the verdict been received and a new trial granted upon the slight evidence which furnished a pretext for this, proceeding, the plaintiffs would have had a clear legal right to have had it set aside on a proceeding in error, and to have had judgment entered on the verdict. The plaintiff was, deprived of this right by the extraordinary and extra-judicial action of the judge; and mandamus is the proper remedy-Moses on Maud., 46. 1. This court has no power to enjoin the judge to do what he has no power to do without such a mandate. It can only -compel him to do that which he ought to do without compulsion. The judge of the district court has no authority to enter a verdict out of term, nor at a subsequent term, nor in the absence of the jury. Civil code, §§ 283, 284. The jury must be conducted into court, their names called by the clerk, .-and their verdict rendered by the foreman. And when the verdict is announced, either party may require the jury to be polled; and if anyone answers in the negative, they must be ; sent out again. In any case, the verdict must be read by the • clerk to the jury, and the inquiry made whether it is their verdict; and if any juror disagrees, the jury must be sent -out again. The jury, therefore, must be present at the rendition of their verdict. But the judge has no power, to reassemble-the jury after they have been finally discharged, .and ¡after the final adjournment of the term. No statute .authorizes it. No statute confers any discretion upon the judge to do this, nor authorizes this court to confer any such • discretion. But the prayer for relief goes further, and asks that the judge be required to render judgment upon the verdict. This-part of the plaintiffs’ prayer disregards all those matters that-may intervene to arrest or intercept the judgment after verdict.. Code, §§ 306, 308. . All' these matters, grounds for a new trial, are to be first-.-adjudicated by the district judge, and this court has no power, to divest him Of the cognizance of such matters; nor can.it be presumed in this proceeding that none of those grounds: for a new trial exist. 2. But we deny that the judge committed any error. He -discharged the jury of the case, because he found that two of the jurors were disqualified to sit. In this act he is justified by the law. Code, § 270, gives two grounds of challenge, . either of which is to be determined by the court. The one -ground is, that the juror challenged has a cause pending ¡against the challenging party; and the other cause is, that ■the juror has a prejudice against the party challenging, or a partiality for the other party. Here are matters'submitted to the sound discretion of the judge, and we maintain with--entire confidence, first, that if his determination could have been revised at all by this court, it could' be done only by -exceptions taken at the time; second, that it is-,a case of ■.absolute discretion in the judge, and cannot be considered by this court in any form. 3. But suppose that the judge ought, or might lawfully have received or recorded the verdict, and then set it asidé fo'r the cause shown, (ánd that strictly such was the only' proper course,) then it follows that the action of the judge was only ■ an irregularity,' from which the plaintiffs suffered no harm, ,-since-by this course the' judge reached a result, which otherwiáe'must have been reached by another course. Now the writ of mandamus is a discretionary writ. It issues only where the court 'perceives that it ought to issue to prevent •injustice. Hence the courts always refuse it, when they can-' ■not see that it is necessary to prevent injustice.