185 Ga. 236 | Ga. | 1937
The first special ground of the motion for new trial is based on the fact that at the time of the rendition of the verdict the presiding judge was not in the court-room, he being in his chambers on another floor of the court-house. After the jury had retired and the judge had left the bench, counsel for both parties were sitting in the anteroom, when the bailiff in charge made a statement that he understood the jury were ready to return a verdict. The bailiff called the judge on the telephone, and counsel for both parties came into the court-room preparatory to seeing the verdict received. When the jury returned the verdict it was given to the bailiff, who brought it to the court-room in the absence of the judge, who was then in his chambers. The judge was under the impression that counsel for both sides had agreed upon an open verdict, and so stated to the bailiff in charge.
It is granted that the word “consent” is not an exact synonym of the word “agree,” as was stated by Chief Justice Russell in his dissent in Malcolm v. Pollock, supra; but one of the definitions of “agree” is “consent,” according to Webster, and the same authority gives, as one of the definitions of the word “agreement,” “a concurrence in an engagement that something shall be done or omitted.” The first definition of the word “agreement” given by Bouvier is “A coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing.” “But,” continues Bouvier, “the assent need not be formally made; it can be inferred from the party’s acts; L. R. 6 Q. B. 607; L. R. 10 C. P. 307; 90 Ala. 529 [8 So. 144].” We think that an agreement between all concerned, that the verdict be returned as it was, might well be implied from the acts of the defendant and counsel for both parties, who were present when the jury came in. The judge was in the courthouse, but not in the court-room, when the jury returned with the verdict. Counsel for the defendant of necessity knew that the judge was not present to receive the verdict. They had been ap
The other rulings announced in the headnotes, taken in connection with the statement of facts, need not be elaborated.
Judgment affirmed on the mam bill of exceptions; cross-bill dismissed.