45 S.E. 348 | N.C. | 1903
This is an action for the recovery of real property. In order to determine the conflicting claims of the parties, the court prepared and submitted the issues set forth in the record. It is (67) unnecessary that we should examine and pass upon the numerous exceptions of the plaintiffs, as we think that one of their exceptions was well taken, and the ruling of the court to which this exception was taken entitles them to a new trial. The other questions may not again be presented for decision.
The jury returned a verdict upon the issues which the plaintiffs contended was complete and sufficient to warrant a judgment in their favor, but the court thought otherwise, and, having held that the judgment was contradictory and insensible, directed the jury to retire and reconsider *89 their verdict, instructing them at the same time how, if they believed the evidence, they should answer the several issues. The jury afterwards returned a verdict in favor of the defendants. The plaintiffs objected to the court receiving this verdict; the objection was overruled, and the plaintiffs then requested that the jury be polled. The court refused to have the jury polled, and the plaintiffs excepted. This presents a new question for our decision.
In S. v. Young,
It would appear, therefore, that when unanimity is required, any party to be affected by the verdict can demand, as a matter of right, to have the jury polled; and it is not to be regarded merely as a privilege which may be granted or withheld at the discretion of the trial court. As it is necessary that the jurors should all concur in the verdict, both in civil and criminal cases, it follows as a matter of course that the right to poll the jury is common to both of them.
In S. v. Young, supra, this Court cites with approval Jackson v. Dale (it should be Fox v. Smith), 3 Cowen (N. Y.), 23, in which it is held that the right to poll the jury extends to civil cases. The requirement that the verdict of the jury must be unanimous would be of little avail to a party if he has no means of ascertaining whether this unanimity exists, independent of the will or discretion of the court. If it is his right to have a unanimous verdict, it must be his right in some way to establish the fact that it is not unanimous.
The jury, it seems, in this case completely reversed their verdict, and it may be that the plaintiffs, if they had been allowed to avail themselves of the right to poll the jury, could have disclosed the fact that the jurors had not all agreed to the verdict. If so, they have lost an important advantage in the litigation, to which they were clearly entitled. They had not waived their right to poll the jury, but (71) on the contrary, strenuously insisted upon it.
The court committed an error in refusing a permit the jury to be polled, and for this error there must be a
New trial.