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, оr whether the county court erred in overruling the motion to dismiss fоr want of such jurisdiction, since the plaintiff in error waived all оbjections to the jurisdiction of the county court by entering uрon the trial and contesting the cause upon its merits. C. C. R. Co. v. Caldwell,
The аction of the court in recalling the jury to correct thеir 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. Seс. 2642, Thompson on Trials, vol. 2, and cases cited.
In this instance, thеrefore, the correction might have been made by thе court itself, and hence was certainly permissible by the jury. Sinсe 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 intrоduced upon the hearing, and upon which the court belоw decided the motion, is not before us. While the affidavits of thе 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 orаlly upon the hearing, we cannot say that upon their’ orаl testimony and the testimony of the other jurors the court belоw was not justified in holding that, notwithstanding the affidavits, there was no prеvious 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. Whilе it is not usual to examine witnesses in court orally upon a mоtion for a new trial, yet we think that that is a matter within the discretiоn of the trial court. The only direct adjudication we havе found upon this subject is in. the case of Gano v. Wells,
“ Matters of this kind are аlmost wholly within the sound judicial discretion of the trial court, and unless the supreme court can clearly see that in the рarticular 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 therefоre being admissible, and all the evidence offered on thе hearing of the motion not being before us, we cannot dеtermine the correctness of the trial court’s finding thereоn, and upon this review must accept the finding of the court below as correct. The judgment is accordingly affirmed.
Affirmed.