Crotty v. Wyatt, 3 Ill. App. 388 (1879)

Feb. 1879 · Illinois Appellate Court

3 Ill. App. 388

Patrick J. Crotty v. James H. Wyatt.

1. Practice—Returning verdict—Polling jury.—The verdict of a jury must be returned in open court by the entire panel, and either party has the undoubted right to have the jurors called individually, and inquire as to whether the verdict returned is his verdict. A verdict is not final until pronounced in open court and recorded.

2. Sealed verdict.—A direction to the jury to seal up their verdict and separate, does not dispense with their personal attendance in court when the verdict is opened, or deprive either party of the right of polling the jury.

3. Rule oe court—Cannot deprive party oe legal right.—The court, by virtue of power conferred to establish rules for the dispatch of business, cannot by such-rules deprive a party of a well established legal right, unless it had in some manner been forfeited under such rules.

Appeal from the City Court of East St. Louis; the Hon. Charles T. Ware, Judge, presiding.

Messrs. Halbert & Greek, for appellant;

that a court may change the form of a verdict, but not in substance, cited Brown v. Rounsavell, 78 Ill. 589; City of Pekin v. Winkel, 77 Ill. 56.

Messrs. Flannigan & Canby, for appellee;

that objections to rulings of the court on questions of evidence must be pre-. served by exceptions, cited Sawyer v. City of Alton, 3 Scam, 127; Smith v. Kahill, 17 Ill. 67; Board of Education v. Greenebaum, 39 Ill. 610; Allen v. Payne, 45 Ill. 339; Reynolds v. Palmer, 70 Ill. 288; Wilkinson v. Deming, 80 Ill. 342.

A proposition for a compromise of a claim is not binding unless accepted: Paulin v. Howser, 63 Ill. 312; Burroughs v. Clancey, 53 Ill. 30.

Claims acquired after suit begun cannot be set-off: Pettes v. Westlake, 3 Scam. 536; Kelly v. Garrett, 1 Gilm. 649.

As to the power of courts to establish rules of practice: Owens v. Ranstead, 22 Ill. 161.

A court may reject a portion of a verdict as surplusage, and render judgment on the remainder: O’Brien v. Palmer, 49 Ill. 72.

The division of costs hy the jury may he rejected hy the court as surplusage: Bacon v. Callender, 6 Mass. 303; Lincoln v. Hapgood, 11 Mass. 358.

Tanner, P. J.

This is an appeal from the city court of east St. Louis. The record shows that the cause was submitted to a jury; that they agreed upon a verdict, sealed it, and handed the same to the sheriff, and were by him discharged. The verdict was delivered to the court, and then announced in open court, without the jurors having been called; the appellant upon the announcement and publication of the verdict, moved the court to have the jury called by names, but the court denied the motion, had the verdict recorded and entered judgment thereon. To this the appellant excepted. He now brings the cause to this court, and assigns for error, the refusal of the court to allow the jurors to be called. Where matters are submitted to a jury their verdict must be returned in open court by the entire panel, and when the same is pronounced, the parties have the undoubted right to have the jurors called individually, and to inquire of each one as to whether the pronounced verdict is his verdict. This course is termed in law, polling the jury. A verdict is not final until pronounced in open court and recorded; and until this is done, either party has the right to poll the jury. It is not less so when the verdict is brought in sealed, than when verbally announced by the foreman. A direction to the jury to seal up their verdict and separate, does not dispense with their personal attendance in court when the verdict is opened, and if any of them dissent their verdict cannot be recorded. Nomaque v. The People, Breese, 145; 2 Gilm. 546; Johnson v. Howe, 2 Gilm. 342; Martin v. Morelock, 32 Ill. 485. The counsel for appellee insists that the court was empowered to disregard the motion for leave to have the jury polled by virtue of a rule of practice established by the court. As to this rule we know nothing, as it is not found in the record. Still the court, by virtue of a power conferred to establish rules of practice to facilitate the dispatch of business, could not by such rules deprive a party of a well established legal right, unless it had been forfeited in some manner under such rules. In the record before us, we find no evidence of laches or dereliction on the part of appellant. For the error of the court in this respect, the judgment will be reversed and the cause remanded.

[Reversed and remanded.