Scott v. Scott

110 Pa. 387 | Pa. | 1885

Mr. Justice Teunkey

delivered the opinion of the court, October 5th, 1885.

“April 21st, 1884, verdict for defendant. At-request of Att’y Smith, jury polled and eleven jurors say they find for the defendant, and one juror says he was in favor of the will.” June 10th, 1884, judgment entered on the verdict. The sole question is, whether the record sets out a valid judgment. None of the facts without the record is at all material, however persuasive such facts may be that the defendant will suffer hardship if the judgment falls. Here, the record must be taken as it has been made and certified; it must so stand, though it differ from the statements by either party.

Nor is there occasion to decide the mootable question, whether, in the trial of a civil cause, the court is bound to permit a poll of the jury on request by one of the parties. At request .of the attorney for defendant, the jury were polled, and it is undeniable that the court had power to permit the poll. In argument it was urged that the allowance of the poll of the jury was discretionary with the court. This point was not decided in Byrne v. Grossman, 65 Pa., St., 310, but the Chief Justice expressed his individual opinion against the right. The court below were not bound by that dictum — they may have adopted the view of the Supreme Court of New York, in Fox v. Smith, 3 Cowen 23, when it was ruled that the jury may be polled at the request of either party at any time before the verdict is recorded, whether it be sealed, or is oral. One of the judges remarked, “ Conceding that the judge may order the jury polled seems to give the party a right to insist on it.”

The second assignment of error is, “The court erred in ordering judgment to be entered on the verdict.” It is said by the defendant that “ this assignment affirms that there is a verdict,” and therefore the judgment was rightly entered. •Less than the twelve jurors cannot render a verdict; the finding of a majority is not a verdict, yet it may be called a verdict and declared void. Thus, “ If there be eleven agreed, and but one dissenting, who says he would rather die in prison, yet the verdict shall not be taken by eleven, no, nor yet the refuser fined or imprisoned; and therefore, when such a verdict was taken by eleven, and the twelfth fined and imprisoned, it was, upon great advice, ruled that the verdict was void: ” Bacon’s Abr. Tit. Juries, G. And in the note such void verdicts are spoken of as verdicts. A party who complains that a recorded verdict is void, may call it a verdict. without danger of being estopped from denying its validity.

“After the verdict recorded the jury cannot vary from it, but before it be recorded they may vary from the first offer of their verdict, and that verdict which is recorded shall stand ; also they may vary from a privy verdict: ” Coke'upon Litt. 227, b. This- rule is simlar to that expressed in Dornick v. Reichenback, 10 S. & R., 84, where it is noted that neither a privy verdict nor a sealed verdict is recorded, and if filed or preserved it would form no part of the record; that the jury may depart from either, and their finding in court is what decides the rights of the parties, and what is admitted of record. See Walters v. Junkins, 16 S. & R. 414.

■ Nothing within this record shows that the jury were polled after the recording of the verdict. The record shows that the jury rendered a verdict for defendant, were polled, and thereupon eleven, answered that they found for defendant, and one that he was in favor of the will. All this is recorded as a continuous act, and as having been, done in tiie usual order of transacting business in court. We have duly considered the comment of counsel on the answer of the one juror, that he “ was in favor of the will.” Clearly, he did not assent to the verdict at the poll. Of course, had the learned president judge been present, the verdict of eleven jurors would not have been entered on the record. Unless all the jurors were agreed, he would have discharged them because of their disagreement. Whether polled or not, one of the jurors, before the verdict was recorded, had a right to dissent, and if he did, there was no valid verdict. The proceeding in court, being fully set out on the record, shows that the judgment has been entered on the verdict of eleven jurors.

Judgment reversed and venire facias de novo awarded.