State ex rel. Town of White Oak Springs v. Clementson

Taylor, J. Taking the allegations in the return of the circuit judge as a correct statement of what took place on the trial, it is very clear to us that there has been no verdict rendered in the action upon which any judgment could be entered. If, after the judge had requested the jury to retire and consider further upon their verdict, the3r had returned into court and stated, as is alleged in the petition of the relator, that they could not agree upon any other verdict than that which they had before handed to the clerk as thei'r verdict, and then returned the papers to the court in the same condition as before, that would present a question not raised upon this demurrer; but if after being requested to retire and further consider their verdict, they retired, and, when they finally came into court, stated that they could not agree upon any verdict, and were thereupon discharged from any further consideration of the ca-s’e, it is very clear to us that they receded from their verdict as first handed to the clerk, and that their final action was a disagreement, and so there is no verdict in the case upon which any judgment can be entered. All the authorities hold that a jury may, after announcing a verdict, if they see fit before they are discharged, change the same and render a different verdict. And in many cases, where the jury have manifestly made an omis [636] sion or mistake in tbeir verdict, it is the duty of the presiding judge to call their attention to that fact, and return it to the jury for correction. See High v. Johnson, 28 Wis. 72-80; Fick v. Mulholland, 48 Wis. 413-419; Schweitzer v. Connor, 57 Wis. 177-182; Blackley v. Sheldon, 7 Johns. 32; Labar v. Koplin, 4 N. Y. 550; Root v. Sherwood, 6 Johns. 68; Tyrrell v. Lockhart, 3 Blackf. 136; Smith v. Williams, 22 Ill. 357; Tifield v. Adams, 3 Iowa, 487; Maclin v. Bloom, 54 Miss. 365; McRae v. State, 4 S. W. Rep. (Ark.) 758; Goodwin v. Appleton, 22 Me. 453; Nining v. Knox, 8 Minn. 149; Bell v. Hutchinson, 2 McCord, 409; Smith v. Keels, 15 Rich. 318; Edelen v. Thompson, 2 Har. & G. 31, and numerous other cases. These cases show the power of the court as well as the jury over their verdict, and that the verdict which binds all parties is that at which the jury finally arrive and deliver to the court. The question in this case is not whether the court committed any error in calling the attention of the jury to what appeared to him to be an inconsistency in their verdict, and requesting them to reconsider it, or in the other remarks he made to them at that time. That question might have arisen in the case if the jury had afterwards returned a verdict in favor of the plaintiff for such damages as were satisfactory to her, and judgment had been entered in her favor upon such new verdict, upon an appeal from such judgment by the defendant; but the jury having silently acquiesced in the request of the court to reconsider their verdict, and afterwards having declared that the}7 were unable to agree upon any verdict, it cannot be said that their final conclusion in the case was that expressed in the verdict they had before presented to the court. It is very clear to us that if the undisputed evidence was as the circuit judge in his return states it, then the verdict was clearly wrong, and it would have been the duty of the [637] court to have set it aside and granted a new trial, if be had received it as their verdict. See Emmons v. Sheldon, 26 Wis. 648; Templeton v. Graves, 59 Wis. 95, 102. By returning the verdict to the jury for further consid-ation, the jury have themselves, by a final failure to agree upon any verdict, accomplished the same result as would have been accomplished by receiving it, and then setting it aside and granting a new trial. Under the evidence in the case, it is very clear it was not a case for merely nominal damages. The verdict was very nearly as perverse as though the jury, after having found all the facts which entitled the plaintiff to a verdict, had found for the defendant. The consequences of the verdict first found by the jury were about the same. If judgment had been entered on it, she would have recovered one dollar damages, and the defendant would have been entitled to recover the costs of the action against her. Secs. 2918, 2920, E. S. The answer does not show that the relator is entitled to the relief asked for. By the Court.— The demurrers to the answers of the respondents are overruled.