Seymour v. Purnell , 23 Fla. 232 ( 1887 )

Mr. Justice Raney

delivered the opinion of the court:

This is an appeal from a judgment rendered in favor of the appellee, who was defendant below, in an action instituted by the appellant to recover the possession of land which he claimed that the appellee unlawfully and against his consent, withheld from him. There was a trial and verdict for the defendant, and appellant moved for a new trial on the ground that the jury had not been properly sworn.

The statute concerning “ forcible entry and detainer ” prescribes the forms of oath to be administered to the jury in the several classes of cases it covers. That for a case of unlawful detainer is: “ You do solemnly swear that you will well and truly try whether the defendant against the consent of the plaintiff wrongfully holds possession of the real estate mentioned in the complaint; whether the said defendant hath so held possession thereof against the consent of the plaintiff within three yearn next before the exhibition of the said complaint, and whether the plaintiff has the right of possession in the tenements aforesaid, and you shall find a verdict and assess such damages as may be recoverable according to the evidence, so help you God.” The oath actually administered to the jury on the trial is, as shown by the bill of exceptions, as follows: “ You and each of you severally swear that you will well and truly try this cause, wherein W. L. Seymour is plaintiff and Jacob Purnell is defendant, and a true verdict give according to the evidence, so help you God.”

Uo exception was taken to the manner in which the jury was sworn till after the rendition of the verdict, -when the motion for a new trial was rendered. The verdict rendered is in the form prescribed by the statute for cases of' unlawful detainer, and finds that “ the defendant did not,, at the time of the filing of the complaint in this cause, wrongfully hold possession of the real estate mentioned in the complaint against the consent of the plaintiff ; that the defendant hath not so held possession thereof against the-consent of the plaintiff within three years next before the filing of the complaint, and that the plaintiff hath not the right of possession in the real estate aforesaid.”

In Candler vs. Hammond, 23 Ga., 493, the ground for a-motion for a new trial was that the jury was not sworn as required by the escheat law. The jury had tried the case-under their usual oath without objection. “ It was too-late,” says the court, “ for the defendant to object to the form of oath administered to the jury after he had proceeded to trial without objection on that account. He was willing to risk the chances of a verdict in his favor under the oath as administered, and it is now too late, after a 'verdict against him, to object.” See, also, Looper vs. Bell, 1 Head, 373; 2 G. Green, (Iowa), 285 ; 1 Clark, (Iowa), 167. The doctrine of Looper vs. Bell is if the jury be not legally sworn and the party or his counsel make no exception at the time, the objection cannot be made available in-the Supreme Court.

The oath administered to the jury in the case before us,, though not in form the one prescribed by the statute, was amply sufficient to cover all the issues and inquiry which-could be involved in such a cause, and to put the jurors-under the solemn obligation of an oath in the performance-of their duty in the premises. The verdict- shows that they understood the character of the issues involved.. There is nothing in the record to indicate that any injury was suffered by the plaintiff from the irregularity; the ■contrary presumption is the only one which, looking at the proceedings as a whole, can be indulged. In a civil case a mere irregularity of this kind unobjected to is not sufficient to justify a new trial. If the oath administered was ■such that it would either not cover every, or would exclude any, feature of the inquiry or issue involved in the •case, or was such as was calculated to mislead the jury, •our conclusion might be different.

The judgment is affirmed.