Martin v. Morelock , 32 Ill. 485 ( 1863 )

Mr. Justice Breese

delivered the opinion of the Court:

The errors assigned on this record, question the right and power of the Circuit Courts to permit a jury to retire, after having brought in a verdict in all respects formal, for the purpose of correcting an error in computation, or for the purpose of reconsidering their verdict.

This power, we believe, has never been questioned. A verdict is not considered valid and final until pronounced and recorded in open court. Either party has the right to have the jury examined by the poll before the verdict is recorded. Before it is recorded, they may vary from the first offer of their verdict, and the verdict which is recorded will stand. And there is no difference whether the verdict is brought in sealed or delivered verbally by the foreman. A direction to the jury to seal up their verdict and separate, does not dispense with their personal attendance in court when the verdict is opened, and if any of them dissent, the verdict cannot be received. Rigg v. Cook, 4 Gilman, 352.

This being the right of the parties, the jury have an undoubted right to inform the court, before the verdict is recorded, that a mistake has been committed, or to ask generally that they may be permitted to retire and reconsider their verdict, the one agreed upon not being satisfactory to them. If the jury do not ask to reconsider, it would seem proper the court, of its own motion, should direct them to retire and reconsider the verdict on expressing their dissatisfaction with the one to which they may have ignorantly or inadvertently agreed. The case is not at an end until the verdict is recorded and the jury discharged, and it would he unjust to record a verdict from which the jury, in the presence of the court, dissent. The proper course was pursued hy sending them back to make a verdict which would satisfy them.

It appears by the affidavit of one of the attorneys of the defendant, that after the verdict first agreed upon had been delivered to the officer, sealed up, one of the attorneys of the plaintiff had conversations with one or more of the jury on the subject of the verdict, and on the morning when the same was read in court, and after these conversations, the jury signified them dissatisfaction with the verdict, whereupon the court instructed them to retire and find another verdict, or modify the one found. The jury found another verdict, larger hy near one hundred dollars than the one first found. A motion was made to set aside this verdict, which was denied, and judgment entered thereon for the plaintiff. This is assigned for error.

Whatever the nature of the conversations may have been is not material; it is sufficient they were had, and it amounts to such misbehaviour, both on the part of the counsel and the jury, as to vitiate the verdict. The conclusions to which a jimy may arrive, must be the result of them own judgment, uninfluenced by any considerations addressed to them out of the jury box. Trials by jury would be of little worth, were parties or their attorneys permitted to interfere in any manner with the jurors after a case is committed to them, and they are considering their verdict. The due administration of justice, as well as public policy, requires a total isolation of the jury from the parties or their counsel when.they are deliberating on their verdict. The verdict, for this interference, should have been set aside.

Another objection is made, that the jury disregarded the unimpeached testimony of HcElwain, a witness called for the defendant. This witness did not speak very positively. He was detailing a conversation had with the holder of the notes sued on, and stated the amount as then claimed to be due on the notes at “ about ” three hundred and seventy-five dollars. Now this may have been, the principal of the notes, without regard to the interest on them. The notes themselves, with the interest, show a larger sum due than the witness stated. It was a question before the jury of the weight of evidence. The witness stated one amount, and the notes and interest on them spoke another and larger amount as due. It was for the jury to determine which ought to prevail, the statement of the witness, by no means positive as to the amount claimed, or the notes. We think the evidence furnished by the notes should prevail, and so the jury decided.

Eor the reasons given the judgment is reversed, and the cause remanded for a new trial.

Judgement reversed.