20 Colo. 139 | Colo. | 1894
delivered the opinion of the court.
It is unnecessary to determine whether the justice of the peace, Wadsworth, obtained jurisdiction .of the cause by reason of the manner m which the same was brought before him, or whether the county court erred in overruling the motion to dismiss for want of such jurisdiction, since the plaintiff in error waived all objections to the jurisdiction of the county court by entering upon the trial and contesting the cause upon its merits. C. C. R. Co. v. Caldwell, 11 Colo. 545.
The action of the court in recalling the jury to correct their verdict under the circumstances did not constitute reversible error. So far as the record discloses, the correction made was one of form only, and that, as corrected, it was the same in substance as the former verdict. The right to correct or amend a verdict in form or substance even, to make it show the real intention of the jury, has been exercised by courts from a very early period. Sec. 2642, Thompson on Trials, vol. 2, and cases cited.
In this instance, therefore, the correction might have been made by the court itself, and hence was certainly permissible by the jury. Since the correction was one of form only, and the separation of the jurors in no manner prejudiced the rights of plaintiff in error, the objection must be overruled.
The alleged misconduct of the jury in arriving at the amount of the verdict, if proven, would have vitiated the verdict; but all of the testimony introduced upon the hearing, and upon which the court below decided the motion, is not before us. While the affidavits of the jurors Evans and Howard would, if uncontradicted, sustain this ground of the motion, yet it appearing that they were examined and testified orally, and that three other jurors also testified orally upon the hearing, we cannot say that upon their’ oral testimony and the testimony of the other jurors the court below was not justified in holding that, notwithstanding the affidavits, there was no previous agreement shown that the jury
It is insisted by counsel for plaintiff in error that the oral testimony was inadmissible and ought not to have been considered. While it is not usual to examine witnesses in court orally upon a motion for a new trial, yet we think that that is a matter within the discretion of the trial court. The only direct adjudication we have found upon this subject is in. the case of Gano v. Wells, 36 Kan. 688, wherein the court say :
“ Matters of this kind are almost wholly within the sound judicial discretion of the trial court, and unless the supreme court can clearly see that in the particular case the trial court abused its discretion, it will not reverse its ruling. As a rule, affidavits onlj’- are used in such cases, but oral testimony may also be used.”
The oral testimony therefore being admissible, and all the evidence offered on the hearing of the motion not being before us, we cannot determine the correctness of the trial court’s finding thereon, and upon this review must accept the finding of the court below as correct. The judgment is accordingly affirmed.
Affirmed.
