Lowery v. Morton

When a jury attempts to return a verdict which is ambiguous uncertain, or does not cover the issues in the case, it is not error for the trial judge to require the jury to return to their room, under proper instructions, and make their verdict certain.

No. 15329. JANUARY 10, 1946. We have for consideration a direct bill of exceptions, the facts as set out being that Mrs. Obie N. Lowery filed suit against R. T. Morton for the recovery of described real estate. The action was in the fictitious form of ejectment. Upon the trial "both sides introduced evidence that would have supported a verdict for either party." The issue for determination by the jury was whether or not a levy of a tax execution upon the land when it was purchased by the defendant in the court below was an excessive levy. No other question appears to have been made in the record before this court. The jury returned the following verdict: "We, the jury, find that there was an excessive levy made when the property was sold for taxes for the year 1931, and our verdict is that Mrs. Obie N. Lowery be returned her 37 acres in lot 319 in the 12th land district, subject to taxes due Laurens Co. for the years 1932, 1933, 1934, 1935, 1936, 1937, 1938, 1939, 1940, 1941, 1942, 1943, and 1944, and that Mrs. Lowery repay R. T. Morton the $37.50 which he paid Laurens Co. for the 1931 tax deed." The bill of exceptions recites that "the court refused to accept this verdict and announced to the jury that the case was one at law and they could not return an equitable verdict, and this verdict could not be received by the court. The court recharged the jury on the effect of an excessive levy of an execution and directed the jury to return to their room and reconsider their verdict and return a verdict for the plaintiff or defendant." The jury then returned the following verdict: "We the jury find in favor of the defendant, R. T. Morton."

The assignment of error is as follows: "The plaintiff excepts and assigns error on this ruling or order of the court on the return and publication of the first verdict of the jury above set out, and says the court erred in not receiving the verdict and directing the jury to return to their room and make a verdict in different form. Plaintiff alleges that the said first verdict was a legal verdict in her favor in that it awarded to her the land sued for, and the judgment of the court should have followed the verdict and been in her favor; that the second verdict which was accepted by the court was contrary to law, and it was error to take that verdict as the legal verdict in the case and render final judgment against plaintiff in favor of the defendant." The Code, § 110-101, provides: "The verdict shall cover the issues made by the pleadings, and shall be for the plaintiff or defendant."

This court has held many times that it is not error for a trial judge not to receive an improper or imperfect verdict, and to cause the jury to retire and put their verdict in proper form. See Van Leonard v. Eagle Phoenix Manufacturing Co.,60 Ga. 544; Blalock v. Waldrup, 84 Ga. 145 (10 S.E. 622, 20 Am. St. R. 350); Vance v. Roberts, 86 Ga. 457 (5), 463 (12 S.E. 653); Baker v. Thompson, 89 Ga. 486 (5), (15 S.E. 644); Jordan v. Downs, 118 Ga. 544 (2) (45 S.E. 439);Lee v. Humphries, 124 Ga. 539 (2) (52 S.E. 1007);Seaboard Air-Line Railway v. Howe, 139 Ga. 429 (2) (77 S.E. 387). In Smith v. Pilcher, 130 Ga. 350, 355 (60 S.E. 1000), Mr. Justice Holden, speaking for the court and discussing the question now under consideration, said: "Whenever a verdict is ambiguous and uncertain in its meaning or does not cover a substantial issue made by the pleadings in the case upon which proof is offered, it is proper to have the jury retire again for the purpose of rendering another verdict, under proper instructions from the court. It is better to do this than to receive the verdict, which would probably have to be set aside on a motion for a new trial, resulting in the expense and trouble of another trial." In Jordan v. Downs, supra, Chief Justice Simmons, speaking for the court, said: "We think that it is not only the right but the duty of the trial judge, when a verdict as returned is ambiguous or indefinite, to call the attention of the jury to the faults of the verdict, ask them what they mean by the verdict or answers returned, and, upon ascertaining what is meant, to direct them to return to their room and correct the verdict so as to make it speak their meaning. A judge has supervision of the whole case, and is not merely a figurehead to sit by and see injustice done or to allow the reception of an ambiguous and indefinite verdict which is likely to give rise to more litigation or to result in another long and weary trial."

We think the language above quoted applicable to the instant case. The jury had one question, and one only, submitted to them — title to the property in controversy. The verdict first returned undertook to decide and determine questions which had not been submitted to the jury, to wit, liability for taxes on the property for a period of thirteen years, and the adjudication of monetary claims as between the parties. We are not called upon in this case to determine whether or not the first verdict returned was a valid verdict. When it is determined that the verdict was ambiguous, uncertain, or did not cover the issues in the case, that is as far as the inquiry need go, for the reason that when this is made to appear, it is not error for the trial judge to require the jury to return to their room, under proper instructions, and make their verdict certain. Especially is this true when it appears, as it does here, that the complaining party made no objection at the time the judge declined to accept the verdict and sent the jury back to their room for further deliberation.

We conclude that there was no error in the action of the trial judge.

Judgment affirmed. All the Justices concur.