McManus v. Thing

Braley, J. The court at common law by virtue of its inherent power could after verdict withhold or stay judgment, if upon the face of the record error appeared which vitiated the proceedings. But if under this rule judgment could be arrested where the declaration did not conform to the cause of action for which the writ issued, or the verdict was not in conformity with the rulings upon the issues joined, or the action could have been defeated by a general demurrer, our St. of 1851, c. 233, § 32, re-enacted in St. 1852, c. 312, § 22, now R. L. c. 173, § 118, provides that “ a judgment shall not be arrested for a cause existing before the verdict, unless such cause affects the jurisdiction of the court. After the defendant has appeared and answered to the merits of the action, no defect in the writ or other process by which he has been brought before the court, or in the service thereof, shall be considered to affect the jurisdiction of the court.” 3 Bl. Com. (Sharswood’s ed.) 393, 395, 399. Stevenson v. Hayden, 2 Mass. 405. Barnes v. Hurd, 11 Mass. 57. Carlisle v. Weston, 1 Met. 26. Smith v. Cleveland, 6 Met. 332, 335. Wilson v. Coffin, 2 Cush. 316. Brown v. Webber, 6 Cush. 560. Hollis v. Richardson, 13 Gray, 392, 393. It accordingly has been held that where the court has jurisdiction not only of the subject matter but of the parties duly served with process, judgment will not be stayed after verdict even if the writ is defective, or there is a misjoinder of counts, or the pleadings are technically insufficient, or the defendant has omitted to avail himself of a defense which would have barred the suit. Hill v. Dunham, 7 Gray, 543. Duhamell v. Ducette, 118 Mass. 569. McLaughlin v. Cowley, 127 Mass. 316. Dean v. Ross, 178 Mass. 397. Lane v. Holcomb, 182 Mass. 360. If, however, as the plaintiff contends, the verdict of which he complains was defective in substance, or repugnant to the material issues submitted, because the question whether at the time of the accident he was lawfully using the elevator was finally left undecided, the statute is inapplicable. McQuade v. O'Neil, 15 Gray, 52, 53. Yet he can take nothing by his motion unless, at the — 59 — time of filing, the infirmities or errors complained of were affirmatively disclosed by the record itself. Sawyer v. Boston, 144 Mass. 470. To maintain his action the plaintiff was required to prove that when injured he was lawfully on the elevator, which he contends had been negligently set in motion by the defendant’s servant, one Redding, and at the second trial after the decision in McManus v. Thing, 194 Mass. 362, the presiding judge submitted to the jury certain questions in writing to determine this issue. The questions and answers, with a general verdict for the defendant, had been handed to the clerk by the foreman, and presumably read by the judge, who then asked the jury, “ I told you that I wanted you to tell me whether the common use of the elevator meant in regard to the way in which it was used and the way in which it was understood it was to be used, that one was to use it first and when they got through, then the other could use it, or whether they were to use it at the same time both together.” The foreman answered, “Well, we came to the conclusion that both parties had the right to use it at the same time,” and the general verdict was affirmed and recorded. By their answers to the questions in writing, that Redding was using the elevator at the time of the accident, and had not finished when the plaintiff came into it with his truck, the jury in effect decided, that the plaintiff was a trespasser, or a bare licensee, while by their further oral answer they found that he was rightfully there. It may be assumed for the purposes of decision, that all the questions and answers should be considered as part of the record, and have the force of special findings of fact. Hix v. Drury, 5 Pick. 296, 301. Spurr v. Shelburne, 131 Mass. 429. If the answers are treated as equally conclusive, as they must be, a vital issue, upon which the plaintiff’s recovery depended, had been decided both for and against him, and until this contradiction and inconsistency, which qualified the effect of the general verdict, had been removed by further deliberation of the jury after proper instructions, it was irregularly affirmed. Roberts v. Rochbottom Co. 7 Met. 46, 49. Roche v. Ladd, 1 Allen, 436, Commonwealth v. Haskins, 128 Mass. 60. Kenney v. Habich, 137 Mass. 421, 423. It would seem to be plain that if this were the whole record, judgment could not be entered on the verdict. No exceptions having been taken to the proceedings — 60 — when the verdict was returned, the plaintiff properly moved for a new trial, and to set aside the findings and answers to some of the questions which are now immaterial, and for an arrest of' judgment, while the defendant moved to set aside the answer to the verbal inquiry. Lufkin v. Hitchcock, 194 Mass. 231, 233. The plaintiff’s motions having been denied, and the defendant’s motion granted, the authority of the court to make the respective orders, and their validity, except as to the motion in arrest of judgment, were reviewed and affirmed on the plaintiff’s exceptions in McManus v. Thing, 202 Mass. 11, 16. It is expressly decided, that after the defendant’s motion had been granted “ there was no inconsistency in the answers that were allowed to stand .or between them and the verdict,” and the decision settled the law upon the question now raised. Boyd v. Taylor, 207 Mass. 335. The record when the present motion was filed having shown, therefore, no inconsistency between the special findings and the general verdict, the defendant was entitled to judgment, and the plaintiff’s requests for rulings, which were refused, as well as his exceptions to the order denying the motion, are without merit. Exceptions overruled.