Davis v. Searcy

Terral, J., delivered the opinion of the court. Davis sued Searcy on a note, to which Searcy pleaded non est factum. Two relatives of Searcy, not disclosing their relationship when asked, were impaneled, and sat upon the case. There being no evidence whatever in regard to fraud, the court instructed the jury that Searcy was not liable, even if he signed the note, if his signature was procured by fraud. The [294] verdict of the jury was: “We, the jury, find for defendant, and assess the cost of court equally between plaintiff and defendant. It is our wish that, if this verdict will not stand, to enter a mistrial. ’ ’ And of these several matters operating to the prejudice of Davis, he predicates his appeal. We think the appellant has good cause for complaint upon the several grounds made by him. The relatives of Searcy were incompetent as jurors; the instruction of defendant, relieving him of liability for fraud (there being no fraud proven) was error, and the verdict of the jury was not a completed or absolute verdict. The jury expressly declared that if the costs were not equally divided they wished to enter a mistrial. And the evident meaning of the jury was that they found for defendant upon condition that their apportionment of the costs be accepted by the court, otherwise the finding to stand for naught. The verdict of a jury should be unconditional, and the result of its deliberate judgment, and manifestly this verdict is not of that character. Reversed a/nd remam,ded.