Stiles v. Ford , 2 Colo. 128 ( 1873 )

Hallett, C. J.

By the common law the plaintiff was required to be present in court in person or by attorney when the verdict of the jury was received, in order to answer to the amercement to which he was liable pro falso clamor e suo. 3 Black. Com. 376. But this fine or amercement is not at the present day imposed for any cause, and the costs to which he is liable, if he fail in the suit, may be adjudged against him although he be not present in court at the time the verdict is rendered. It would seem, therefore, that the reason assigned by Blackstone for requiring the plaintiff to attend to receive the verdict no longer exists, and although he may attend for the purpose of polling the jury, he may unquestionably waive that right. In People v. Mayor's Court of Albany, 1 Wend. 36, it was said that the plaintiff had the right to submit to a nonsuit at the coming in of the jury, and therefore the verdict should not be received in his absence. But under our statute the plaintiff must have taken a nonsuit before the jury retired from the bar, and he could not have claimed that right if he had been present when the verdict was received. R. S. 510. Therefore, the reason assigned in New York, as well as that which existed at common law for requiring the plaintiff to be present at the coming in of the jury, does not obtain here, and we do not perceive that there is any reason for saying that the court may not receive a verdict of a jury in the absence of the parties. Undoubtedly the parties have the right to poll the jury and to object to the form and sufficiency of the verdict, but if they will not attend for that purpose at the proper time they should be regarded as waiving the right.

The plaintiff not having been present when the verdict was received, he could not, thereafter, raise any question which, by the rules of practice, he was required to present at that time; but the right of the court to receive the verdict, and enter it of record, in his absence, cannot be denied, and, therefore, we must regard the action of the court, in respect to the verdict, as entirely regular.

From what has been said, it will be apparent that the judgment of nonsuit, following the reception of the verdict, cannot be supported upon the reason therein assigned. For, if the plaintiff was not required to attend for the purpose of hearing the verdict, his failure to do so was, of itself, no ground of nonsuit. And, although the plaintiff should have been present to move the court for judgment upon the verdict, or for a new trial, or to take some further action in the cause, we think that the court was not warranted in proceeding to judgment against him without any delay whatever. The defendant asked nothing of the court, and a short time could have been allowed the plaintiff to take some other step in the canse, without seriously obstructing the business of the court. Usually, the time and manner of proceeding in a cause must be left to the discretion of the court in which it is pending, to be exercised according to established rules of practice, and with due regard to the rights of litigants, and, where there is unreasonable delay on the part of the plaintiff in speeding the cause, we do not doubt the power of the court to nonsuit him, even when the defendant neglects or refuses to move the court in that behalf. But here the judgment of nonsuit appears to have been entered immediately after the verdict was received, and this we are inclined to regard as an abuse of the discretionary power which we concede is conferred upon all courts to dispatch the public business.

The judgment of the district court is reversed, with costs, and the cause is remanded, with leave to defendant to move the court for a new trial, and also with leave to plaintiff to move for judgment on the verdict.

Reversed.