147 P. 508 | Wyo. | 1915
This cause is here on error. The action is one for damages for personal injuries, and was not triable without a jury unless a jury trial was waived, with the assent of the court, in the manner provided by statute. The record shows that issues of fact were presented by the pleadings, consisting of the petition, answer and reply; that on June 24, 1913, a jury was impaneled and sworn to try the cause; that the trial was proceeded with by the introduction of evidence, and on June 25, 1913, at the conclusion of the evidence, and after being instructed by the court and hearing the arguments of counsel, the jury retired to deliberate upon their verdict, and on the following day returned into court and reported that they were unable to agree upon a verdict, and were thereupon discharged from further duties in the cause. It does not appear, nor is it contended or suggested, that there was any further trial of the cause, but a judgment was entered therein reading as follows:
“This day came on to be heard the motion of the defendant this 13th day of September, 1913, asking that judgment be entered for the defendant in the above entitled case; the plaintiff was represented by Cadle & Byrd, his attorneys, and the defendant appeared by J. H. Burgess, its attorney; and the court having considered the aforesaid motion does find that the above entitled case was on the 24th day of June tried before this court and a jury, and was finally submitted to the said jury; that thereafter, to-wit, on the 26th day of June, 1913, the aforesaid jury, being unable to agree, was discharged by the court without rendering a verdict. And the court does further find that at the close of the testimony the defendant requested the court to instruct the jury to find a verdict in favor of the defendant; which request was then refused. And the court does now find, after hearing the argument of counsel, that the aforesaid*155 request should have been granted, and that the jury should have been instructed to find a verdict in favor of the defendant. And the court does accordingly find that the defendant’s motion for judgment in the aforesaid case now and here presented should be granted and sustained. Wherefore, it is hereby ordered, decreed and adjudged that the said motion be, and the same is hereby, sustained and granted. And it is further hereby ordered, decreed and adjudged that the above entitled cause be, and the same is hereby, dismissed; that the plaintiff take nothing, by this action; that the defendant go hence without day; and that the said defendant have of and recover from the said plaintiff its costs herein expended and taxed at the sum of $.; to all of which the plaintiff at the time duly excepted.”
There is no bill of exceptions in the case, and on that ground a motion is made to dismiss the proceedings in error, and it was submitted at the same time the case was heard upon the merits. But a bill is not necessary to question the authority of the court to render this judgment at the time and in the manner in which it was rendered, that is to say, after the discharge of the jury without a verdict upon their disagreement, and without a further trial of the cause, for if the condition of the case did not authorize the entry of the judgment, the error appears on the face of the record proper. Nor is it necessary to. the consideration of such error that there should have been a motion for new trial filed and overruled, with an exception to the ruling. It was contended in argument that the petition in error is insufficient to present the question; the contention being based on the form of assigning the error. It is alleged in the petition in error that after the judgment was entered a motion for new trial was filed by the plaintiff and overruled, and the ruling excepted to, and a copy of the motion showing the stated grounds thereof is set out in full. Following such copy of the motion it is alleged that the overruling of the motion was error, “and that the court erred in each particular as set forth in said motion.” We cannot approve
It is clear that this judgment cannot be sustained. It is not supported by either verdict or findings and was rendered without trial. Even if the conclusion stated in the judgment that a verdict should have been directed in favor of the defendant and that the defendant’s motion for judgment should be granted could be regarded as a finding by the court upon the issues, it would be a finding without a trial, for the only trial of the cause had occurred before a jury, resulting in the disagreement and discharge of the jury without a verdict. The judgment cannot be regarded as the result of that trial, for it ended with the discharge of the jury, leaving the court without any further control or authority over it. (17 Ency. R., 2nd Ed., 1251.) The cause might be tried again either before a jury or before the court without a jury if jury trial be waived, but a trial
The only authority in the statute for entering judgment without trial in a controverted case like the one at bar is found in Sections 4610 and 4624, Compiled Statutes, 1910. Section 4610 provides for the dismissal of an action without prejudice to a future action. It provides for such a dismissal by the plaintiff before the final submission of the case to the court or jury, or that the dismissal may be by the court for any of the following reasons: Where the plaintiff fails to appear on the trial; for the want of necessary parties; for plaintiff’s disobedience of an order concerning the proceedings in the action; or on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. And it declares that in all other cases the decision must be upon the merits, upon the trial of the action. Section 4624 provides for judgment upon the pleadings whenever, upon the statements therein, one party is entitled by law to judgment in his favor, although a verdict has been found against such party. And it has been held in other states under the same code provision that such judgment may be rendered upon the pleadings before as well as after verdict. (Humboldt Min. Co. v. Am. Mfg., Min. & Mill. Co., 10 C. C. A. 415, 62 Fed. 356; Kime v. Jesse, 52 Neb. 606, 72 N. W. 1050.)
The question presented by the objection to this judgment has been decided in another case where the same procedure was followed. (Pike & Richardson et al. v. City of Sher
“When a jury is unable to agree upon a verdict, and is discharged by the court, the statute provides that the cause may be tried again immediately, or at a future time, as the court may direct. (Section 4505, Comp. Stat. 1910.) The case stands as though it had never been tried. We are unable to understand how the court, without a retrial of the issues of fact presented by the pleadings, could sustain the defendant’s motion for judgment, in the absence of any agreement of the parties that the cause should be- submitted to and decided by the court upon the evidence which had been introduced, and upon which the case had been submitted to the jury. As we have already said, the cause stood for trial as though it had never been tried, the evidence would have to be introduced, and might be materially different from that formerly given. The record contains no agreement of the parties to submit the case to the court upon the evidence introduced before the jury, and the judgment on its face clearly indicates that it was upon the consideration of the defendant’s motion only that the judgment was entered. * *' * * Such being the record as certified to this court, • * * * * the judgment was entered without trial,. without hearing any evidence on the issues of fact presented by the pleadings, and without any agreement that the cause should be submitted to the court on the evidence formerly given before the jury, and was therefore erroneous.”
We are asked to reconsider the point thus decided, and it is now argued in support of the judgment that when the court concluded that the jury should have been instructed to find a verdict for the defendant the only issue in the case became one of law, and was properly determined by the court upon the defendant’s motion, under the statute providing that issues of law are to be tried by the court unless referred. The argument is ingenious but fallacious. It confounds an “issue of law,” which can arise only upon the pleadings, with a “question” of law which may arise
Following the same line of argument cases are cited showing the practice in some states of rendering the proper judgment upon the evidence where a verdict has been set aside because of a failure of proof. Where there is a verdict, the case and trial is still within the control of the court for proper action. It may render judgment on the verdict or set it aside. But, as above suggested, the cases cited are not in point, for the reason that there was no verdict in this case. Other cases than those named in the brief might be cited, as well as numerous cases to the contrary. The practice referred to does not generally prevail in this country. Usually where it does prevail it is provided for by statute. To illustrate, in the State of Washington there are statutes which may explain the cases cited from that state, viz.: Casety v. Jamison, 35 Wash. 478, 77 Pac. 800, and Davis v. Rose-Marshall Coal Co., 74 Wash. 565, 134 Pac. 180. Section 4994 of Ballinger’s Washington Statutes provides that in all cases tried in a superior court with a jury in which the legal sufficiency of the evidence shall be challenged, and the court shall decide as a matter of law what verdict shall be found, the court shall thereupon discharge the jury from further consideration of the case and direct judgment to be entered in accordance with its decision; and Section 5085 provides that the court may, upon motion of the defendant, dismiss an action or render a judgment of non-suit, when, upon the trial, the plaintiff fails to prove a sufficient cause for the jury. But we do not find that these provisions are held to authorize the court to render a judgment upon defendant’s motion where the jury has disagreed and has been discharged. On the contrary, in such a case the power seems to be denied. (Dos-sett v. St. Paul & T. Lumber Co., 28 Wash. 618, 69 Pac. 9.) There is a statute in Pennsylvania providing in substance
The power of the court to render judgment non obstante ve re dicto, when this judgment was entered, was limited in this state to cases where, upon the statements in the pleadings, one party was entitled by law to judgment in his favor, except where a judgment might be entered upon a special verdict disregarding a general verdict inconsistent therewith. (Comp. Stat. 1910, Sec. 4624; Challen v. Cincinnati, 40 O. St. 113; McCoy v. Jones, 61 O. St. 119, 55 N. E. 219; R. R. Co. v. Nobil, 85 O. St. 175, 97 N. E. 374, Ann. Cas. 1913A, 1019; Manning v. City of Orleans, 42 Neb. 712, 60 N. W. 953; Barge v. Haslam, 91 N. W. 528, 63 Neb. 296, 65 Neb. 656, 88 N. W. 516.) Section 4624 supra reads as follows:
“When, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party.”
This statute enlarges upon the common law, which allowed a judgment to be rendered non obstante veredicto only for the plaintiff, and then only where the plea confessed the action and did not sufficiently avoid it. The defendant might, at common law, move in arrest of judgment, but that motion, as well as the motion of the plaintiff for judgment non obstante veredicto, must have been grounded upon something apparent on the face of the pleadings. The statute, as said in the Ohio case of McCoy v. Jones, supra, brought into the code the substance of what was theretofore known as a motion for judgment non obstante veredicto and a motion in arrest of judgment. It does not appear that the judgment here complained of was rendered solely upon the pleadings. On the contrary, the strong inference is that
In Plunkett v. Detroit Elec. Ry. Co., supra, where a motion for judgment non obstante veredicto was granted on the ground that a verdict should have been directed in favor of the defendant, the Michigan Supreme Court said:
*164 “The defendant and the court below mistook the practice. At the common law, judgment non obstante veredicto could be entered only when the plea confessed the cause of action and set up matters in avoidance which were insufficient, although found true, to constitute a defense or bar to the action. The rule was later relaxed, and made to apply in favor of the defendant, so that it is now generally held that the defendant is entitled to a judgment non obstante vere-dicto when the plaintiff’s pleadings are not sufficient to. support a judgment in his favor. (11 Enc. PL & Brae., 912 et seq.) So, too, if there be both a general and special verdict, and the latter be inconsistent with the former, judgment may, in some cases, be based upon the special verdict, disregarding the general verdict. But we know of no case in which it is proper practice to enter a judgment non obstante veredicto, unless it appears on the record that the verdict of the jury cannot be supported as matter of law. In all other cases the proper practice is to move for a new trial, or review the case on writ of error and exceptions. There must be either a general or special verdict to support a judgment, or the pleadings must authorize its entry.”
A recent statute of this state, enacted since this case was submitted here, extends the authority of the trial court to render judgment non obstante veredicto, following a statute • of Minnesota and North Dakota in that respect, by providing, in effect, that when a verdict has been returned against a party whose motion or request that a ver.dict be directed in his favor has been denied, the court may, on motion by such party for a new trial or for judgment notwithstanding the verdict, order judgment to be entered in his favor, if it be found that he was entitled to have a verdict directed in his favor, and authorizing this court, in reviewing a judgment on exceptions and error, to order and direct judgment to be entered in favor of the party who was entitled to have the verdict directed in his favor, whenever it appears from the pleadings and evidence that the party was entitled to have his motion or request for a directed verdict granted.
In the opinion in the former case in which the question here involved was decided (Pike & Richardson v. City of Sheridan, supra) the statute was referred to, which provides that when the jury is discharged after the cause is submitted or during the trial, the cause may be tried again immediately or at a future time, as the court may direct. (Comp. Stat. 1910, Sec. 4505.) It is argued that this statute ought not to be construed as requiring another trial of the cause, büt merely as permitting a trial. It is immaterial whether the words “may be tried again” are to be regarded as mandatory in effect, or merely as authority for-a retrial of the cause. If the provision had’ been that the cause “shall” be tried again, it certainly would not be construed as preventing a dismissal by the plaintiff, if otherwise he would be entitled to dismiss the action, or by consent, or a judgment upon the pleadings if either party should be entitled to such a judgment. The preceding section authorizes a discharge of the jury by the court on account of the sickness of a juror, or any accident or calamity requiring its discharge, or by consent of both parties, or after the jurors have been kept together until it satisfactorily appears that there is no probability of their agreeing. (Comp. Stat. 1910, Sec. 4504.) The purpose of such a provision is apparent. And we think the provision that after such discharge of the jury the cause may be tried again was adopted to prevent the discharge of the jury without a verdict from operating as a termination of the suit, and it cannot reasonably be doiibted that its effect is to declare that, notwithstanding the discharge of the jury as authorized by Section 4504, the action remains pending and. may again be tried. It clearly recognizes the effect of the discharge of the jury without a verdict as a mistrial, and' certainly confers no authority to enter a judgment without another trial.
In Syme v. Jude’s Exec’rs., the case was submitted to a jury, who did not agree, and, thereupon, a juror was withdrawn by consent, and an amendment to the declaration after the withdrawal of the juror was held allowable. In Planer v. Smith, supra, it is said in the opinion by Lyon, Justice: “The withdrawal of a juror operates to continue the cause, and does not of itself éntitle the defendant to a judgment of any kind. If a non-suit be properly granted the withdrawal of a juror as preliminary thereto is entirely superfluous and harmless. But if judgment of non-suit be rendered because a juror has been withdrawn, such judgment is founded upon a misapprehension of the legal effect of withdrawing a juror, and is erroneous.” In Schofield v. Settley, it was said in the opinion by Breese, Justice: “The practical effect of withdrawing a juror, in our practice, is not that it shall operate as a non-suit,- but merely to carry the cause over to another term. This practice has crept in gradually, ameliorating the more rigid mode of proceeding by the rules of the common law. It is considered necessary for the due administration of justice, that courts should possess this power, to be used in their discretion.” In Rosengarten v. Cent. R. R. Co., 54 Atl. 564, 69 N. J. L. 220, it is said: “The withdrawal of a juror by direction of the court produced a mistrial. There never having been any trial of the cause, it is obvious that a new trial cannot be directed. The original venire remains in force, and the parties are entitled to proceed under it.” It was said by Lord Abinger, delivering the opinion of the court disposing of the case of Harries v. Thomas, supra: “I entirely agree that the mere withdrawal of a juror does not of necessity
It is unnnecessary to consider what the right of the court would be with reference to the discharge of a jury upon a disagreement without the statute authorizing such a procedure, or, in the absence of a statutory provision for a retrial, whether such a discharge would operate as a termination of the suit or a bar to another action. If it may be conceded that the statutory provisions were uunnecessary and that they are merely declaratory of the common law on the subject, it cannot be doubted that by the disagreement and discharge of the jury a mistrial results, and it is entirely clear, both upon reason and authority, that, unless a different rule is declared by statute, another trial is necessary to give the court authority to render judgment, except by consenfor a party be entitled thereto upon the pleadings.
In a case already cited (Dossett v. St. Paul & T. Lumber Co., 28 Wash. 618, 69 Pac. 9) it appeared that upon the trial before a jury the defendant’s motion for a non-suit was denied, and also a motion that a verdict for defendant be directed. Upon reporting that they were unable to agree upon a verdict the court discharged the jury from a further consideration of the case. Afterwards there was a motion for leave to file an amended complaint, and the defendant served notice of appeal. The trial court refused to consider the motion to amend the complaint until after the determination of the appeal. The appeal was sought to be sustained under a provision of the statute authorizing an appeal from an order affecting a substantial right in a civil
“There has been a mistrial by reason of the failure of the jury to agree upon a verdict. There has been no abuse of discretion by the court in discharging the jury from a consideration of the case when they failed to agree. The day has long since passed when courts are justified in carting juries about and starving them into submission. The appellant, in substance, says the condition here presented is that the appellant is about to be subjected to the expense of another jury trial, for which it has no redress, whatever may be the result, because, if the judgment is finally in its favor,'the same will avail nothing because of the poverty of the respondent. For this reason it contends the court should review the evidence in the case that resulted in a mistrial, in order to determine whether the court made the proper rulings on the motions for a non-suit and for a directed verdict. The law expressly provides for the discharge of the jury after they have been kept together, and it satisfactorily appears that there is no probability of their agreeing, and the action shall thereafter be for trial anew. (Sections 5006, 5007, 2 Ballinger’s Codes & St.) Prom the matters disclosed in this record the issues may not be the same in the next trial. Great liberality under our system is allowed in the pleadings. Even if the pleadings are not amended, the same evidence mayr not be before the jury in the next trial. Tf this case is resubmitted to a jury, it will result from the express provision of the statute, and not from any order of the court. The action which may result in a re-examination of the issues in this case was the act of the jury in its failure to agree, and not the act of the court, and no act of a jury is reviewable in this court except on appeal from a judgment rendered on their verdict. * * * * In*170 this case there has been no trial, because there has been no decision on any issue; there is no verdict, and no judgment. Appellant’s claim, therefore, that this evidence, which is barren of results, can be brought here for review by a bill of exceptions, has no more foundation than would exist should an appeal be brought from a mere ruling on the admissibility of the evidence.”
To the same effect are the cases of Railroad Company v. Denson, 83 Ga. 266, 9 S. E. 788; Augusta Ry. Co. v. Tennant, 98 Ga. 156, 26 S. E. 481; and Stewart Constructing Co. v. Jenkins, 116 Ga. 22, 42 S. E. 382. It is held in these, cases that where a motion for a non-suit was made and overruled and a mistrial followed, a bill of exceptions assigning no error except the refusal to grant a non-suit cannot be entertained by the Supreme Court. Discussing the question, it was said in Augusta Ry. Co. v. Tennant: “Unlike a judgment made in overruling a demurrer, a judgment upon a motion for non-suit is not conclusive upon either of the parties upon another trial. It does not go to the sufficiency of the cause of action as laid in the pleadings, but goes to the sufficiency of the evidence submitted upon the trial. If there be no trial, then a judgment of non-suit could afford no ground of exception upon a trial, and a mistrial, or failure to reach a verdict, is equivalent to no trial at all, and the case stands when the mistrial is declared as though it had never been entered upon, and having never been entered upon, this court has no authority Ity writ of error to enquire into the commission of errors alleged to have been committed upon an attempted trial which so results. Such errors, if committed at all, were necessarily corrected, in so far as they were prejudicial, by the direction of a mistrial, as effectually as if there had been a new trial awarded. * * * * motion for non-suit could not have been •made except there be a trial, and where a mistrial occurs, there being no trial, there could have.been in contemplation of law no motion for non-suit occurring upon a trial.” The application of this statement of tire law to the procedure in the case at bar is apparent.
Where a general verdict is returned, but the jury fail to agree upon special questions submitted to them which are material to the issue, it is held that the result is a mistrial rendering it improper to render judgment upon the general
Where it is held that a dissent of one of the jurors in open court destroys the effect or validity of a sealed verdict, the result is held to be a mistrial, leaving the' court without authority to take, another verdict from the same jury and enter judgment thereon. “When a juror dissents from a sealed verdict there is a necessary choice of evils, a mistrial or a verdict finally delivered under circumstances that justly subject it to suspicion of coercion or improper influences. * * * * If one juror can dissent, so may all change their view and render a new verdict exactly opposite to the one they first agreed upon and sealed. * * * * The only safe way out of such a situation is to treat it as a mistrial and discharge the jury.” (Kramer v. Kister, 40 Atl. 1008, 44 L. R.
Where the court submits special questions only to a jury, in a case where the issues are triable by a jury and the verdict is not merely advisory as in. an equity case, and the answers thereto are not sufficient to dispose of all of the issues, and the court makes its own findings upon the other issues óf fact and renders judgment, or disregards the special findings of the jury and makes its own findings'and renders
It is said in 21 Ency. Pl. & Pr., 1007-8, that it is a mistrial where a jury is discharged without a verdict. And in Fisk v. Henarie, 32 Fed. 417, 427, it is said: “Where a jury is discharged without a verdict, the proceeding is properly known as a mistrial; and where a verdict is set aside 'because it ought not to stand, the result is the same. The proceeding has miscarried, and the consequence is not a trial, but a mistrial.” So, in Hester v. Hagood, 3 Hill (S. C.) 195, where the jury were discharged, by consent, without a verdict, because of failure to agree, the court said, explaining the effect of the proceeding, upon considering a motion for leave to amend the declaration: “The mistrial did not alter the rights of the parties; the case stands now exactly as if no attempt to try it had ever been made.”
We have gone to this length in discussing the question, not because it has been deemed difficult, for it has seemed to us to be almost elementary, in view of our statutory provisions, but because there was no brief for the defendant in error in the former case where the question was decided, and in this case a very earnest argument has been made in support of the procedure, which has seemed entitled to our attention and to require a careful reconsideration of the matter. Under the statutory provisions above referred to, we
We have not considered the question from the standpoint of the objection that by rendering the judgment complained of upon defendant’s motion the plaintiff was denied the right of jury trial. It is not clear that the record sufficiently shows a demand for trial by jury at the time and in the manner required by the statute, since the only showing in that respect is a certificate of the clerk of the court, under the seal thereof, tó the effect that upon the call of the docket at the previous term the plaintiff demanded a jury trial and paid the required jury fee of twelve dollars. But the case is one in which a jury trial could be waived only with the assent of the court. And the case having been tried to a jury, we have deemed it proper to assume, at least, that if a proper demand was not made the waiver that might result therefrom was not assented to by the court. Having submitted the case to a-jury under the circumstances stated, and the jury having been discharged without a verdict upon a failure to' agree, there was no trial of the case to authorize the entering of judgment. The judgment will be reversed and the cause will be remanded for trial, or for such other proceedings as may be proper and not inconsistent with this opinion.