Corning v. Woodin

Graves, J.

This case is in an awkward shape and must be briefly disposed of. It appears that Coming brought replevin for a quantity of logs which had been cut by Woodinon Coming’s land. Neither Coming’s ownership of the land, nor the fact of cutting by Woodin, was controverted. But Woodin claimed that he did the cutting under an oral sale to him by Coming, which amounted to a license. This-sale was denied by Coming, and whether one was made or not, was the important question of fact in the cause. The-evidence in regard to it was conflicting. The jury found against the plaintiff.

In the course of the trial the defendant’s counsel stated in substance before the court and jury that in a previous case of trover between the parties the question whether such a contract of sale was actually made was distinctly in issue and decided as now contended by defendant, and that the deliberate decision of the jury then made ought to settle the-present case in defendant’s favor, and on the close of the evidence he produced the charge delivered in the case-referred to and read it to the court in the presence and hearing of the jury.

These proceedings were objected to by plaintiff’s counsel,, but the judge refrained from interference and remained silent. Tie neither announced a ruling on the objection, nor expressed any disapprobation of the practice of defendant’s-counsel, and the jury must have inferred that it had the judge’s approval. No other view was possible.

The whole proceedings were improper.

It is now said that as there was no declared ruling there is-no foundation for the charge of error. No doubt it was the judge’s duty to interpose without waiting to be moved thereto-by plaintiff’s counsel; but the objection taken was an explicit call upon him to do so, and his omission to state any opinion *46 cannot be set up as a bar against revision of tlie proceedings. Injurious irregularities at tlie trial cannot be protected against review in an appellate court, by tlie judge’s refusal to make express rulings on objections properly made against them. Were it otherwise it would be in his power to stifle the right to a revision in many cases.

The proper view of the present record is to construe the judge’s silence as an actual permission and allowance of what was objected to. Some attempt was made by defendant’s counsel to avert the effect, but we are satisfied, on careful examination of the whole case and especially on consideration of other parts of his address to the jury, that the influence was not wholly dissipated.

As there must be a new trial on account of tlie practice mentioned it is hardly expedient to consider anything further. The state of facts next time may be quite different.

The judgment is reversed with costs and a new trial granted.

The other Justices concurred.