9 Kan. 668 | Kan. | 1872
'The opinion of the court was delivered by
In the trial of a cause wherein the reía-: ■tors were plaintiffs, and the M. K. & T. Railway Company •' was-defendant, the jury brought in a written verdict, which' being examined by the judge was by him ednsidered imperfect, ■ andTre directed the jury to retire and perfect their verdict, ‘by •cofiiputin^- the interest and making it a part of -the assessed: ■damages. During the absence of the jury, the' attorney for • the defendant, by a written statement, informed the court' that' since the last retirement of the jury he had been informed, .and believed the information true,'that two of-the'jury, (therein named,) were parties engaged' in the prosecution of ¡an action to restrain' the officers of Morris county from the payment of interest on certain bonds issued by said county to the defendant company, while said jurors had, in.answer
It is suggested in argument that the defendant will have no opportunity to poll the jury; and other difficulties are mentioned in the way of carrying out this order, which are not without weight. The defendant’s right to poll the jury is not questioned; but when in that, or any other matter, the impossibility has been brought about by his own action, then he ought not to be allowed to complain of the result. The peremptory writ will go to enter the verdict as of the 12th day of April, 1871. There will be no mandate as to the judgment, as there is no certainty that a judgment will be a necessary consequence of an entry of the verdict. No inference is to be drawn that a new trial may not be rightfully granted upon sufficient cause shown. That question is not before us, nor can it be decided in the absence of one of the parties to be affected by it. We shall also carefully abstain from directing the amount for which the verdict shall be entered, for although the evidence on that point is abundant and satisfactory in this court, we are not unmindful of the fact that one of the parties is not before the court. The verdict should be made a part of the record, and the court below will know how to make the records of his court speak the truth. Peremptory mandamus awarded.