Peart v. Chicago, M. & St. Paul Railway Co.

Citations

• 5 S.D. 337
• 58 N.W. 806
• 1894 S.D. LEXIS 63

Syllabus

<p>1. Unless it is expressly waived, either party has an absolute right to have the jury polled on the announcement of the verdict, whether oral or sealed, and at any time before the same is recorded.</p> <p>2. After a cause had been submitted to a jury, and while the same was being considered in a jury room adjacent to the building in which court was being held, court took a recess at 6 o’clock p. m. until 9 o’clock a. m. of the following day, and thereupon the clerk’s office and the court room were'closed. The jury, in charge of a bailiff, and in the room to which it was assigned, continued its deliberations until 2 o’clock on the following morning, when, at the request of the jury the judge was notified that a verdict had been agreed upon. The judge immediately went from his home to the jury room, and, in the absence of the clerk and other officers of the court, and in the absence of all the attorneys and parties to the suit, asked the jury if they had agreed upon a verdict. The foreman answered affirmatively, and delivered the verdict to the judge, who asked him if it was his verdict. Being answered in the affirmative, the judge addressed the jury as follows: “So say you all, gentlemen of the jury?” The unanimous answer was, “We do,” or something to that effect. The judg’e then discharged the jury, and allowed the members thereof-to separate. The verdict, which was for the defendant, was kept by the judge until court opened at 9 o’clock a. m. of that day, when, in the absence of the jury, he delivered it to the clerk, who thereafter recorded such verdict upon the minutes of the court, and the plaintiff thereupon excepted to the verdict, and the manner in which it had been received. Held, that such verdict was fatally irregular, and insufficient to support a judgment entered thereon against the objection of counsel for plaintiff.</p> <p>(Syllabus by the court.</p>