Klemmer v. Biersdorf

Per Curiam. Action to recover the purchase price of an engine and set of plows. The answer alleged deception in the sale and breach of warranty. The cause was tried and submitted to a jury on Saturday at Id:30 a. m., when the court, with consent of counsel, instructed the jury that they might return a sealed verdict. The judge then left the town and returned to his home. At 11:30 p. m. the jury returned into court with a v.erdict sealed, and delivered the same to the clerk who thereupon discharged the jury for the term as directed to do by the judge, and adjourned court to 11 o’clock on the following Monday morning. At the call of court on Monday the envelope containing the verdict was opened by the court in the absence of the jury, and the verdict recorded. It was not opened in the presence of, or read to,- the jury. Thereafter, upon motion of defendant, the court granted a new trial up'on the ground “that it was error to discharge the jury on the bringing in of the verdict without the verdict being opened and read to the jury.” From the order granting a new trial, plaintiff appealed. Section 7812 of G-. S. 1913 provides: “When the verdict is given, and is such as the court may receive, the clerk shall immediately record it in full in the minutes, and read it to the jury, and inquire of them whether it is their verdict.. If any juror disagrees, the fact shall be entered in the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall be discharged from the case.” The provisions of this statute were not complied with. The proceeding was so irregular that the granting of a new trial was justified. Affirmed.