Fredette v. Fredette

Per curiam. This appeal is from a judgment in a divorce and alimony case. The appellant contends that the verdict of the jury was improperly and illegally entered, and that a new trial, pursuant to his timely filed motion, should have been granted. The wife (appellee) filed her action for divorce and alimony. The husband (appellant) filed responsive pleadings which included a written demand for a jury trial. The case was tried before a jury; the appellant was not present at the trial; and the appellant’s former counsel, who had withdrawn from the case prior to the trial because the defendant refused to appear, was not present at the trial. A verdict and judgment were entered in the case, and appellant’s former counsel forwarded him a copy of the judgment. Appellant then employed another attorney who filed a motion for a new trial in the case within thirty days after the entry of the judgment. The trial judge conducted a hearing on the motion for a new trial at which time evidence was introduced, and he then entered a judgment denying a new trial. The evidence at the original trial was not reported, and there is no transcript. However, the evidence presented at the hearing of the motion for a new trial was reported, and a transcript of that hearing was included in the record on appeal. It shows that the 'jury at the original trial did not retire from the jury box to deliberate upon a verdict; and it shows that a written verdict prepared by appellee’s counsel was presented to the jury and signed by the foreman of the jury. The verdict of the jury is in writing and signed by the foreman. It states, "The within and foregoing case having been presented to the jury, after presentation of evidence, as provided by law, it is the verdict of the jury . . The court’s judgment entered upon the verdict recites, "This cause of action having been heard before the jury after consideration having found in favor of the plaintiff.” Held: The evidence is sufficient to support the finding of [70] the trial judge. Argued April 9, 1974 — Decided October 1, 1974 Rehearing denied October 25, 1974. Hunter & Robins, John Calvin Hunter, for appellant. Swertfeger, Scott, Pike & Simmons, Joseph Szczecko, for appellee. Judgment affirmed. All the Justices concur, except Gunter and Ingram, JJ, who dissent.