Scott v. Moore, 41 Vt. 205

Scott v. Moore

41 Vt. 205 | Vt. | 1868

The opinion of the court was delivered by

PRour, J.

On the argument of these exceptions three questions only ape insisted upon by the counsel of the defendants, the exception as to the correctness of the charge to the jury, being abandoned.

I. It is insisted that the county court had not jurisdiction of .the cause, but should have dismissed it on the defendants’ motion.

*209The action is assumpsit, the declaration containing the common counts only, and the plaintiffs’ specification filed in the cause, showing that they claimed to recover the sum of two hundred and twenty-five dollars. The motion to dismiss es based upon these facts: after the plaintiffs had put in their evidence and rested their case, the defendants on examination discovered an error.in one of the bills of butter carried into the plaintiffs’ claim or account, by which it was made one hundred dollars too large, leaving actually due the plaintiffs only the sum of one hundred- and twenty-five dollars, instead of the balance set forth in the specification. The defendants had had this bill in which the error was detected from the time it was delivered to them in October, 1865, and neither of the parties discovered the mistake, until it was der tected on the trial. All parties were mistaken up to that time as to the amount due. The plaintiffs’ book was put into the case, which showed a larger balance due the plaintiffs than their specification, and the case finds that the plaintiffs, in bringing their, action to the county court, acted in good faith, believing the amount their due exceeded the sum of two hundred dollars. The adjudged cases seem to settle the question. In Powers v. Thayer et al., 80 Vt., 361, which was an action of assumpsit for money paid, Pibrpoint, J., remarks in the course of the opinion: “ The rule is well established, that, when a plaintiff brings his action in the county court in good faith, believing that he has a just claim to more than one hundred dollars (which was the extent of a justice’s jurisdiction when that action was commenced), the court will not dismiss the case for want of jurisdiction, although the plaintiff fails on trial to establish a claim to that amount.” In Brainard v. Austin, 17 Vt., 650, which was also an action of as-sumpsit, Hebaed, J., says : “If the plaintiff sets up a claim exceeding one hundred, dollars, and introduces testimony tending to. establish it, and it appears the action was brought in good faith, the plaintiff supposing that a right to recover the claim existed, the jurisdiction of the court will not be ousted, though it may turn out that the plaintiff misjudged as to his right.” And in Miller v. Livingston, 37 Vt., 467, Barrett, J., in commenting on the general question, uses this language: “ In the action of book ac*210count and in actions on promissory notes, the statute arbitrarily prescribes the criterion of jurisdiction. In other cases it is left to depend on the matter in demand,” and Brainard v. Austin, supra, is cited as illustrating and laying down the correct rule. See also Spafford v. Richardson, 13 Vt., 224, and Stanley v. Barker et al., 25 Vt., 507.

In the present case, the matter in demand and in controversy was, as indicated by the principle of the cases referred to, the amount of the plaintiffs’ claim, as unaffected by unintentional errors not known or discovered when the action was commenced. In such cases the jurisdiction of the court would be no more af-febted by such error in this form of action upon the facts, than it would be by the disallowance on trial of a portion of a claim which in the aggregate was within the apparent jurisdiction of the court, for any other cause or reason. The criterion is the amount of the matter in demand, as distinguished from the amount recovered. The court were, therefore, correct in refusing to dis-nliss the action.

II. The defendants also insist that the verdict of the jury should have been set aside, for the reason that one of the jurors, was not sworn before it was given in court. On- the trial the defendants had the aid of several counselors, and the motion is supported by the affidavit of only one of them, who testifies that he was ignorant of the fact that the juror was not sworn, until after the trial closed.

The fact that the juror was not sworn, was an irregularity the party might waive, as necessarily it could not affect the fairness of the trial. The juror may have acted as conscientiously and as impartially in the discharge of his duty as a juror, as he would have done under oath. It is not shown that he did not. This being a matter, then, that a party may waive, having a knowledge of the fact, we are not disposed to be more strict or to apply a different rule than applies to a case of known cause of challenge to & juror, which a party waives, or neglects to bring to the attention of the court. A new trial will not be granted for that. Jeffries et al. v. Randall, 14 Mass., 205. But without making any question as to the sufficiency of the cause alleged in point of law, making it *211the duty of the court to set aside the verdict, they should not do .so unless the party, the defendants, as well as their counsel, were ignorant of the fact relied upon. This is essential, and in this case was the foundation of the application to set the verdict aside ; and the question was one of fact, whether or not they knew the juror was not sworn. On this question knowledge of counsel is as material as knowledge of the defendants, as they are affected by what is within their counsel’s knowledge relating to the cause, and which does, or does not, transpire in court. In this view, there may be some difficulty in entertaining the exceptions upon this point, but, treating the defelsion of the county court as a pro forma ruling of the law, the decision was correct, as it does not appear that the defendants, and One of their counsel attending the trial, did not know that the juror was not sworn. The inquiry involved the necessity of showing a want of knowledge of the fact on the part of the defendants and counsel, and this evidence was peculiar to them. Not producing' it on the trial, justified the inference,' which the court no doubt made, that all concerned were not wholly ignorant of the condition of affairs ; and, if not, the irregularity should be treated as waived.

III. The application to the court to receive additional affida-¡ vits after the decision was announced, was addressed to their dis¿ cretion. The refusal to receive them, is a point that is not. subject to exception.

The judgment of the county court is affirmed.