Planer v. Smith

Lyon, J. Tbe power of tbe circuit court, in a proper case, to permit a juror to be withdrawn, or to order a nonsuit, is undoubted; but there is no necessary connection between tbe two processes. Tbe withdrawal of a juror operates to continue tbe cause, and does not of itself entitle tbe defendant to a judgment of any bind. If a nonsuit be properly granted, tbe withdrawal of a juror as preliminary thereto is entirely superfluous and harmless. But if judgment of nonsuit be rendered merely because a juror has been withdrawn, such judgment is founded upon a misapprehension of tbe' legal effect of withdrawing a juror, and is erroneous. 2 Tidd’s Pr.,. 862; 1 Arch. Pr., 282; Stodhart v. Johnson, 3 Term, 657; Sanderson v. Nestor, Ryan & M., 402; Everett v. Youells, 3 B. & A., 349; The People v. Olcott, 2 Johns. Cas., 301; [34] Chandler v. Bicknell, 5 Cow., 30; The People v. Judges of New York, 8 id., 127; The People v. Ellis, 15 Wend., 371. Tlie judgment before us is erroneous because it was evidently rendered on tlie theory that-judgment must necessarily follow tlie withdrawal of a juror. But were any judgment proper, it should only be a judgment of nonsuit, which, of course, would be no bar to another action for the same cause. This, however, is an absolute judgment, disposing of the merits of the controversy, and it would be none the less so were it for the return of the property instead of being for the value thereof. In either form it would bar another action for the same property; and hence, in either form, would be erroneous. The motion to vacate the judgment goes only to form. It fails to reach vital defects. It does not seek to avoid the judgment because none should have been rendered, nor to change it from a final judgment on the merits to one of non-suit. But, did the motion specify valid grounds for vacating the judgment, it would not avail the plaintiff on this appeal. It has often been held that an appeal from an order like that from which the present appeal was taken, cannot be made to perform the functions of a writ of error, or of an appeal from the judgment. Edwards v. Janesville, 14 Wis., 26, and cases cited. We think the plaintiff has mistaken his remedy, and that the order from which this appeal was taken affects no substantial right of the plaintiff. By the Cou/rt. — Appeal dismissed.