32 P. 254 | Idaho | 1893
This action was brought by the respondent 'against the appellant to recover $550 damages, alleged to have been sustained by reason of the appellant, as sheriff of Kootenai county, having levied upon certain property claimed by the respondent, to satisfy an execution issued in the case of Liebe & ■Co. against one Henry Farley.
It is alleged that said property was of the value of $470.08, ■and that by reason of the levy and sale under said execution respondent was damaged in that sum, and in the further sum •of seventy-five dollars for certain rents. The answer denies the material allegations of the complaint, and avers that the property referred to in the complaint was the property of one •John Farley, the execution debtor above referred to, and not the property of plaintiff, and alleges that the pretended transfer from Farley to Flood was fraudulent and made with intent to Linder, delay and defraud Farley’s creditors.
The action was tried by the court with a jury, and judgment rendered against appellant for the sum of $500. During the trial the court withdrew the seventy-five dollars claimed for rent from the consideration of the jury. This appeal is from the order overruling the motion for a new trial and from the judgment.
Verdicts obtained in this manner have been condemned by many courts, and if the method used in arriving at the verdict comes within the prohibition, of subdivision 2 of section 4439 of the Revised Statutes of 1887, the verdict should have been set aside and a new trial granted. Said subdivision 2 provides as follows: “Misconduct of the Jury. — And when any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any of the jurors.”
Counsel for the respondent admits that a verdict so obtained is vicious and irregular, but contends that it is not a verdict obtained by a resort to the determination of chance within the meaning of that term as used in the statute, and cites, Turner v. Tuolumne Co. W. Co., 25 Cal. 397, as an authority in his favor. In that ease the jury arrived at their verdict in the same manner as in the case at bar, and the
The learned court then quotes the second subdivision of section 193 of the California Practice Act, which is the same as subdivision 2 of section 4439 of the Revised Statutes of Idaho above quoted, and -the court further says: “Being in derogation of the common law, this statute must be strictly construed and cannot be held to include such kinds of misconduct as do not come clearly within the descriptive terms of the act.” The court, after referring to a number of authorities on the point, whether a verdict obtained in the manner set forth was “a resort to the determination of chance” within the meaning of that expression as used in said section, arrives at the following conclusion: “We are therefore of the opinion that the verdict in this ease is not a chance verdict within the meaning of the second subdivision of section 193 of the Practice Act, and for that reason the affidavits of the jurors by whom it was rendered cannot be admitted to impeach it.”
In Thompson and Merriam on Juries, section 415, the eminent, authors, after quoting from that part of the opinion of the court in Turner v. Tuolumne Co. W. Co., supra, which holds that there was no element of chance in the method used by the jury in arriving at the verdict rendered, but that the result was obtained by the most accurate of sciences, say: “This reasoning seems hardly' conclusive. It proceeds upon the hypothesis that at the time the jurors consent to be bound by the result of the addition and division it is certain what each juror will mark down as his estimate of the damages; hence this method of finding a verdict is as exact as the science of mathematics. But the contrary is the fact. The jurors con
“Quotient” verdicts are often referred to as “chance” ver■dicts. (Thompson and Merriam on Juries, 517, note.) This conclusion as reached in Turner v. Tuolumne County Water Co., supra, by applying the rule of strict construction, a construction forbidden by section 4 of the Revised Statutes of Idaho, which section is as follows: “The rule of the common law that •statutes in derogation thereof are to be strictly construed has »no application to these statutes. The Revised Statutes establish the law of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed, with a view to effect their objects •and to promote justice.”
It is contended that as we adopted this statute from the •statutes of California, we thereby adopted the construction given said section by the supreme court of that state. It is true that the rule is, when a state adopts a statute of a sister •state, that it thereby adopts the interpretation and construction given such statute by the courts of last resort of the ■state from whence it is adopted. But when the statute is ■adopted from a state in which the rule obtains that all statutes in derogation of the common law must be strictly construed, and the rule in the state adopting such statute is that, not only all statutes in derogation of the common law, but that all statutes, whether in derogation of the common law or not, must be liberally construed, the rule of liberal construction must prevail.
Counsel for respondent in support of his contention, in addition to Turner v. Tuolumne County Water Co., supra, cites:
In Hunt v. Elliott, 77 Cal. 588, 20 Pac. 132, it was held: 1. That the affidavit of a juror did not state facts which made the verdict, within the meaning of subdivision 2, section 657, of the Code of Civil Procedure, and was therefore inadmissible to impeach it. 2. That affidavit was met and overcome by counter-affidavits, and cites Turner v. Tuolumne County Water Co., supra, and affirms the rule of strict construction, and holds that verdict found by the method therein set forth is not the result of a resort to the determination of chance, but that the result is reached by “the most accurate of sciences,” which rule and conclusion this court declines to follow or adopt. The great weight of authority condemns verdicts arrived at by the method used in the ease at bar, because they are the result of -chance and of lottery, rather than the deliberation of the jurors. As stated in one case: “It substitutes the fluctuating -and uncertain hazards of the lottery for the deliberate conclusions of their reflections and interchange of views.” (Par-
In Parham v. Harney, supra, the amounts named by jurors varied from thirty dollars to $10,000. In the case at bar, one juror at least marked $500, which was a larger sum than plaintiff was entitled to recover under the instructions of the court. Pawnee Ditch & Imp. Co. v. Adams, 1 Colo. App. 250, 28 Pac. 662, a case directly in point, and decided under a statute identical with our own, holds that a verdict obtained by the method used in finding the verdict in the case at bar must bo set aside, and that such verdict is the result of chance rather than the deliberation of the jurors. In the ease at bar the misconduct of the jury was proved by the affidavits of three of the jurors, and said affidavits show that an understanding was had by which each juror was to mark on a slip of paper the amount which he considered the plaintiff entitled to recover, that said sums were to be added together and divided by twelve and the quotient resulting from such division was to be accepted and rendered as the verdict.
These affidavits were not contradicted, and we think that a verdict so found should be set aside. It was not only found by a method both vicious and irregular, but it was a resort to a determination of the same by chance- — a method fully as. uncertain, and as much the sport of chance, as drawing lots or tossing up a piece of money, to determine the amount of a. verdict. The clear intent of the law is that the verdict shall
The third specification is as follows: “The court erred in holding that it was not necessary that there should be a change of possession in the sale of personal property as against creditors, if the creditors do not come in until a year after.” This specification is quite obscure, but if the court held that in the sale of personal property an immediate delivery and an actual and continued change of possession are not necessary to a valid sale, as against the seller’s creditors, and their successors in interest, the ruling was error. (Harkness v. Smith, ante, p. 221, 28 Pac. 424. See Rev. Stats., sec. 3021; Murphy v. Braase„ ante, p. 544, 32 Pac. 208 (decided at present term of this court).
The fifth specification of error is as follows: “Court erred in excluding from the consideration of the jury the following question: Q. Within the last two years didn’t you claim other property that Liebe & Co. attached in an action against James Graham as your property?” We fail to comprehend the relevancy of any pertinent answer to this question. It was not error to exclude it. The sixth error specified is not well taken. The witness answered the question propounded. (See Transcript, fols. 77-79.) In regard to the seventh error specified: The court did not err in allowing Farley to testify to value of articles mentioned in the complaint. If he failed to give each article its true value, the appellant could have shown that fact by producing evidence of its true value. There is nothing in the eighth error specified, as the witness answered the interrogatory referred to. (See Transcript, fols. 123, 124.)
The real point in issue is as to the transfer of the property from Farley to Flood, respondent. The appellant contends that such transfer was fraudulent and void, and Flood contends that it was in good faith and valid. Flood testifies that Farley still remained in possession of the property after giving bill of sale to Flood. (See Transcript, fol. 67.) Farley testifies as a witness for Flood. The testimony excluded was proper to show that said witness had made statements in regard to the ownership of said property in conflict with the testimony given by him. The declarations of Farley as to the ownership of said property made to the sheriff at the time of the levy is proper testimony, and should have been received by the court. It was competent evidence to go to the jury. The fact that the license was-taken out in Farley’s name was a circumstance to go to the jury and the court erred in excluding it. It was error to exclude the testimony of Martin as to conversations had with Flood and Farley in regard to their business relations, as touching the property in issue.
One of the issues made by the pleadings is that said property belonged to said Farley, and not to Flood, and that the sale from Farley to Flood was fraudulent and void, and made to hinder, delay and defraud creditors of said Farley; much of the evidence excluded by the trial court would have a tendency to sustain the allegations of fraud. The acts and declarations of parties to a fraud, though not a party to the action, are admissible in certain cases. (1 Greenleaf on Evidence, see. 190, note 2, p. 219; Mallock v. White, 20 Cal. 598; Ferbrache v. Martin, ante, p. 573, 32 Pac. 252 (decided at this term).
The first instruction given to the jury, at the request of plaintiff, is not the law, and it was error for the court to give it. The same is true of the second instruction. Instruction No. 1 of defendant should have been given without modification, and it was error to give it as modified. Instructions 2 and 3, requested by defendant, should have' been given, and it was error to refuse them. The motion for a new trial should have been granted.
The judgment of the court below is reversed and remanded and a new trial ordered, with costs of this appeal in favor of appellant.