123 Wis. 19 | Wis. | 1904
There can be no doubt that the order denying plaintiff’s motion to correct the verdict and enter judgment in his favor is excluded from those which are appealable by sec. 3069, Stats. 1898. Its appealability is contended for under subd. 1 of that section, and, obviously, no other can have application. But, however much it may affect a substantial right, as pointed out in Murphey v. Weil, 86 Wis. 643, 57 N. W. 1112, it did not determine the action, nor prevent a judgment from which the plaintiff might have appealed. If the court committed error in refusing to amend the verdict
Turning now to defendant’s appeal from the order granting a new trial, we are confronted by the not unusual uncertainty as to the grounds on which it was awarded. That uncertainty is narrowed somewhat by the order itself, which declares the motion to have been urged, first, because of mistake in writing out answers to special verdict; and, secondly, because verdict was not supported by evidence. This second ground is still uncertain, for it is contended here, as also doubtless
It is, however, probably true that tbe new trial was granted because tbe court was convinced by tbe jurors’ affidavits that the written verdict did not express tbe conclusion of tbe jury, and that tbe peril of injustice from entry of judgment for defendant was so great that, in exercise of tbe discretion vested in him, a new trial ought to be bad. This view presents tbe question whether tbe affidavits of jurors could be received as evidence of tbe facts they state. Tbe general rule is very ancient, and often reiterated, that tbe statements of tbe jurors will not be received to establish their own misconduct or to impeach their verdict. Edmister v. Garrison, 18 Wis. 594, 603. An excellent collection and analysis of decided cases will be found in Woodward v. Leavitt, 107 Mass. 453. From this it appears that tbe early idea was that of secrecy in their deliberations,, and, further,-the impropriety of receiving jurors’ statements .as to their mental processes, whether to impeach or support their verdict. This rule, in its application, has been subjected to much of refinement and qualification by different courts, involving conflict of dicta and of actual decision which it would not be profitable to review in detail nor possible to harmonize. Tbe necessity of some limitation to tbe general rule against receiving statements of tbe jurors is declared in McBean v. State, 83 Wis. 206, 209, 53 N. W. 497. In some cases tbe rule is limited to things which transpire in tbe jury room or in court, but it will be found in most of those cases also limited to matters involved in reaching the verdict. This limitation was recognized and applied in Hempton v. State, 111 Wis. 127, 145, 86 N. W. 596; Roman v. State, 41 Wis. 312; Schissler v. State, 122 Wis. 365, 99 N. W. 593; Peppercorn v. Black
We conclude, therefore, that the trial court properly received and considered the affidavits of the jurors in this case; that they at least sufficed to satisfy the court of great danger1 of injustice being done by entry of judgment in accordance with the written verdict, and therefore justified him in exercising his discretion to relieve plaintiff from the predicament in which he stood by awarding him another trial. Whether such affidavits made so plain a case as to entitle plaintiff to correction of the verdict and judgment in his favor is a question not open to plaintiff on1 this appeal. Plaintiff might probably have raised it had he refrained, from motion for new trial and appealed from a judgment in defendant’s favor. When, however, he made the latter motion, he appealed to the court’s discretion to relieve him from the adverse situation which, while not due to his fault or mistake, was due neither to any misconduct of the jury nor error of the court. He had no absolute right to such relief, but merely to have the court exercise a judicial discretion whether it ought to be accorded him. The situation does not fall within any of those where it is held proper to grant the relief without terms, under the authorities on the subject above cited. We are brought to the conclusion, therefore,, that the court committed no error in awarding new trial; butj whether it was granted because the verdict, as filed, was-against the weight of evidence or was impugned by the affidavits of the jurors, error was committed in failing to impose reasonable terms as a condition. What those terms-should be is a subject for consideration primarily by the trial court.
By the Court. — Plaintiff’s appeal is dismissed. Upon defendant’s appeal the order is reversed, and cause remanded with directions to embody -in the order granting new trial the payment of reasonable terms by plaintiff as a condition.