Hugley v. Holstein , 34 Ga. 572 ( 1866 )

Walkee, J.

The question in this case is one of practice; and the rule to be established, one rather of expediency than of principle. Upon the best consideration we have been able to give the question, we think it better that the verdict should be received, and recorded, than to permit the case to be continued after the finding of the jury has become known. The principle of the case of Merchants’ Bank vs. Bawls, 7 Ga Rep. 199 and 200, is applicable to the facts in this case. There the Court says, “ we believe that the ends of justice, and equality of right and privilege between parties, will be best promoted by the following rule, to-wit: A party shall not dismiss or be non-suit in any case, after the publication of the verdict, and it shall be considered as published eo instanti in which it is handed to the plaintiff’s counsel, or other person directed Toy the Court to receive it.” While, under the Code, sec. 3186, this verdict could not, perhaps, be said technically, to have been “ published,” yet in all essential particulars it was so. The j ury agreed on their verdict, wrote it out, had it signed by their foreman, and delivered it to the clerk, by the direction and in the presence of the Judge. Next morning after the papers had been, by consent, re-delivered to the jury, they came into open Court with their verdict, showing that they still agreed as to their finding. We think, under all the facts and circumstances of the case, the verdict should be received and recorded, allowing the parties all the rights they would possess were the verdict just rendered; that amotion for anew trial may be made, or any other motion which may be proper, on the same terms as if no continuance had been granted.

We deem it proper to say that we agree with the Court below, that the newly discovered evidence may be material, and, perhaps, will warrant the granting of a new trial. Indeed, it is with reluctance that we have reversed the judgment granting a continuance; but we think the better practice, under such circumstances, will be to consider of the materiality and effect of the newly discovered evidence, upon a motion for a new trial, rather than upon an application for a continuance after the finding of, the jury shall have begome known.

Judgment reversed.