Whitney v. Crim — 1 Hill & Den. 61

Majority

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Whitney vs. Crim.

Headnote

Much greater latitude is allowed in pleadings before justices of the peace, than in courts of record; especially in cases where the objection was not taken at the proper time.

Independently of the case of Lovett v. Pell, (22 Wendell, 369,) the misjoinder of counts in a justice’s court, is not a fatal defect, no objection being interposed until after verdict.

Where W., a party to a suit before a justice of the peace, after the jury had retired to deliberate, told the justice_ in the presence of the other party, that the jury wished to see him, whereupon he entered the jury room alone, but held no conversation with them respecting the merits of the case; held, that what W. said to the justice, amounted to little, if any thing, short of an express consent; and the judgment having been against W., the court refused to interfere with it.

The case of Taylor v. Betsford, (13 John. R. 487,) is an extreme one, and the court will not go beyond it.

' Where, after a jury had retired to deliberate, they came into court, and requested the justice to read over the testimony of a certain witness, which he did, but owing to his not having taken down all the witness said, a part of it, only remotely relating to the merits, was not mentioned to the jury; held, that neither party having called the justice’s attention to the omission at the time, it was not a ground for reversing the judgment, especially as there was no reason to suppose that the omission was intentional.

There being some evidence to sustain the finding of a jury in a justice’s court, on a question of fact, the court cannot interfere with it, though they believe the jury erred.

On error from the Herkimer C. P. Grim sued Whitney-before a justice of the peace, and declared against him for a breach of warranty of a horse, which he had of Whitney, and also for fraud in the purchase. Whitney pleaded the ' general issue; and the cause was tried by a jury. There-was some evidence given tending td show that, upon the facts, Grim ought to recover, though the preponderance was in favor of Whitney. After the testimony was closed, and the jury had retired to deliberate, Whitney, the defendant, told the justice that the jury wished to see him; whereupon both parties being present, and neither objecting, he entered the jury room alone. While in there, the jury, as the .return stated, wanted to be discharged because they could not agree; but this the justice refused, telling them they

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must make a further effort, Some of the jury then said, there was a portion of the testimony they did not understand alike, and wished it read over to them. The justice thereupon left the jury room, and notified the parties of the request, to which Grim replied, that the jury must come into court. The jury then came in, and repeated their request as to reading the testimony, specifying that of one Getman, a witness for .Whitney, as the part about which they differed. The justice then read Getman’s testimony from his minutes; but having omitted to take down a part of the witness’ statement, it was not mentioned with the rest to the jury. The part omitted was, however, only very slightly material, if at all. Neither party called the justice’s attention to it at the time; nor was there any thing in the circumstances tending to show that the justice intentionally suppressed it. The jury, after some further deliberation, rendered a verdict in favor of -Grim for $20 damages, on which the justice rendered judgment. The common pleas of Herkimer, on certiorari, affirmed the judgment; and Whitney sued out a writ of error.

G. B. Judd, for the plaintiff in error.

E. Graves, for the defendant in error.

Independent of the case of Lovett v. Pell, (22 Wendell, 369,) which I feel unwilling to follow as a precedent, the misjoinder of counts in a justice's court will not be a fatal defect after the verdict. Much greater latitude is allowed in pleadings before justices, than in courts of record—especially in cases where the objection is not taken at the proper time.

"What Whitney, the defendant in the court below, said to the justice, respecting the wish of the jury to see him, amounted to little, if any thing, short of an express consent that the justice should go into the jury room, and he ought not now to complain of that act. Taylor v. Betsford, (13 John. R. 487,) is an extreme case, and we ought

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not to go beyond it. This case is distinguishable from that, and we think the defendant’s objection should not prevail.

The justice read the testimony of Getman, on the request of the jury, as he had it on his minutes. There is no ground for alleging that he intentionally left out a part of it; and the defendant, though present, did not call the attention of the justice to the fact that the evidence, as read, was not complete. .1 think the judgment should not be reversed merely because the justice had taken, and consequently read, an imperfect statement óf the testimony—especially where there is no ground for saying a wrong was intended, and when the defendant did not attempt to correct the mistake at the proper time.

On the merits, there is no reason for saying that the jury erred in finding a verdict for the plaintiff ; but it is a case where there was some evidence to support the verdict, and we cannot, therefore, interfere upon certiorari. The decision of the jury is final. (15 Wendell, 490. 18 id. 141.)

Judgment affirmed.