Farrell v. Hennesy

21 Wis. 632 | Wis. | 1867

Cole, J.

It is insisted that the motion for nonsuit should have been granted, because the plaintiff, when she rested, had given no sufficient proof of title in herself to the premises in controversy when the action was commenced. It is true, the deeds put in evidence were objected to on the ground of irn-materiality; but no objection was taken that they were not sufficient in form to convey the title providing the probate proceedings were regular. Now we are of opinion that these deeds, together with the admissions in the second defense set up in the answer, relieved the plaintiff from the necessity of making further proof of title in the opening of the cause. For it appears from the admissions in the answer, that the title, which was in Murphy at the time of his death, has, by the guardian’s sale and conveyance, become vested in the plaintiffl It is true, it is further alleged that this sale was void; but for what reason is not stated, unless it be because the purchaser, Bergen, who bid in the land for the nominal consideration of $320, in fact paid no money therefor. But it is certainly impossible to say, even with such an allegation in the answer, that the whole probate proceedings were of no effect. For the other facts admitted show that they were not void, but that, by virtue of those proceedings and subsequent conveyances, the title became vested in the plaintiff. And this being so, the plaintiff could avail himself of these admissions, although the answer contained the general denial. Sexton v. Rhames, 13 Wis., 99; Hartwell v. Page, 14 id., 49. The motion for a non-suit was therefore properly denied.

"We have had no little difficulty in determining what should be the effect upon the judgment of a verdict received under the circumstances disclosed in the affidavits on both sides on the hearing of the motion for a new trial. Had the defendant objected to the verdict being received after what was said by the juror, Grrubee, we should without hesitation send the cause back for a new trial, on account of the irregularity in the rendition of the verdict. But he made no objection to the verdict being received and recorded as the verdict in the cause. Must he not then be deemed to have'waived all objection to the irregular manner in which the verdict was pronounced and recorded by the court ? It is claimed by the counsel for the plaintiff, that the irregularity is cured, because the defendant did not take an objection to the verdict being received in the court below, where the court could have sent the jury out for further deliberation. It is said that the time to raise an objection of this nature is before the verdict is received, and when an opportunity exists for the jury to reconsider their verdict; and that if the objection is not then taken, it is waived. There is much force in this view of the matter, and we are inclined to think that it is sound. At the same time, we deem it due to the proper administration of justice to say, that we decidedly disapprove of the court receiving a verdict as this was received, even though no objection was taken at the time by the defeated party. It was clearly the duty of the court, upon its own motion, when the juror said that although he had consented to the verdict as a matter of accommodation, yet it was against his conscience, to have directed the jury to retire and reconsider their verdict. Courts cannot exercise to much care to secure a free, voluntary, conscientious and unanimous verdict. State v. Austin, 6 Wis., 205; Bunn v. Hoyt, 3 Johns., 255; Douglass v. Tousey, 2 Wend., 352.

It follows from these views that the judgment of the circuit court is correct, and must be affirmed.

By the Court■ — Judgment affirmed.