Rutland v. Hathorn , 36 Ga. 380 ( 1867 )

Walker, J.

This is an unfortunate controversy about a small matter between two old men, neighbors, of good character, and who have got into this trouble owing to the confusion incident to the war. Both are equally honest in this matter, doubtless, but owing to the excitement of the times, and the frailty of memory, a misunderstanding has arisen, which it is very difficult, if not impossible to adjust satisfactorily. In this state of uncertainty, we are disposed to leave the case where the Court below left it. The jury having decided the question upon the evidence, which is admitted to be conflicting, and the Court having declined to grant a new trial, and there having been no error in law committed by the Judge, we think it best for both litigants that there should be an end to this lawsuit.

1. The parties were entitled to have this case submitted first to a petit jury, from whose finding, either could have entered an appeal. Taylor vs. Holland, 20 Ga. Rep., 11.

2. This right may be waived, however, by consent, as is done almost daily, and the case transferred from the common-law to the appeal docket, without trial at common-law before a petit jury.

3. In this case the issue was submitted to a special jury, not only without objection, but “both parties assenting thereto, as understood by the Court.” It may be possible that it did not occur to the learned counsel, at the moment, that the parties were entitled to a trial before a petit jury, though the familiarity with the decisions of this Court ever manifested where these counsel appear before us, would go far to rebut this idea; or it may be that both parties being ready, wished, by a single trial, to end an unfortunate litigation between neighbors, and therefore intentionally went before a special, in preference to a petit jury; which latter, from our knowledge of the counsel and the facts of the case, we are disposed to adopt as the true hypothesis. Be this as it may, the parties having, without objection, gone to trial before a special jury, in the first instance, they must be held to have waived their right to a trial before a petit jury, and as a consequence their right to appeal, and must be bound by a decision made by the tribunal of their own selection.

4 and 5. It was agreed by the parties that the jury, after agreeing might disperse, and return their verdict next morning. When the verdict was returned into Court next morning, plaintiff's counsel asked leave to poll the jury, which was refused by the Court, and this is alleged as error. In Smith et al. vs. Mitchell, 6 Ga. Rep., 465, this Court says: “It is our judgment, that in civil cases it is discretionary with the presiding Judge to poll the jury or not. It is proper, however, to say that the jury ought to be polled, whenever there is any good reason to believe, no matter how the fact is manifested, that any one of the jury has not agreed to the verdict.” “ The motion to poll the jury was properly refused, because the jury had dispersed before it was made. We are clear that the only safe general rule is to deny the application in all such casesp. 466. This fully sustains the ruling of the Court below.

6. A new trial was moved on the ground, also, that the verdict was not unanimous. In support of this ground, the only evidence was the affidavit of one of the jurymen. It would seem that some questions cannot be considered as settled by judicial decision. In Coleman vs. The State, 28 Ga. Rep., 84, this Court says: “the affidavit of a juror, made after the rendition of his verdict, is not admissable to impeach the verdict. This is well settled.” See also, Brown vs. The State, Ib. 217. McElvin vs. The State, 30 Ga. Rep. 869.

7. Should the Court have admitted the testimony of Henry Gregory ? It was argued that this testimony was admissable as part of the res gestee. Our Code, Section 3696, says:— “ Declarations .aecompanging an act, or so nearly connected therewith in time, as to be free from all suspicions of device or after-thought, are admissable in evidence as part of res gestee.” How nearly connected in time was the statement made by plaintiff to the principal fact, the alleged loaning of the money ? It was on the same day it seems, at the same place, as plaintiff was starting home. But how long did it occur after the alleged loaning of the money ? Gregory did not recollect seeing defendant there at all, though a portion of the proposed testimony was : “ there goes Thomas Hathorn,” and would seem to imply that defendant was at the time within the sight of the witness. Mr. Greenleaf says the declarations “must be concomitant with the principal act, and so connected with it as to be regarded as the mere result and consequence of the coexisting motives, in order to form a proper criterion for directing the judgment which is to be formed upon the whole conduct.” 1 Greenleaf, Ev. See. 110. The evidence proposed was not shown to accompany the act, was not concomitant with it, nor sufficiently near in time to be admissible as part of the res gestee. It may have occurred in a short time after the principal act, or it may have been one, two, five, or even ten hours afterwards.

8. Should a new trial be granted because the verdict is against the evidence and the charge of the Court ? In Doe ex. dem. Hanby et al., vs Roe cas. ej., and Tucker tenant, 28 Ga. Rep., 485, this Court says : “We think the verdict contrary to the weight of evidence in this case; but not so strongly and decidedly so, as to authorize a new trial, especially when it has been refused by the Circuit Judge who presided on the trial of the cause.” In Diomatari vs. Choate et al., Ib. 320, this Court holds that: “ Notwithstanding the Court may differ with the jury as to the. preponderance of the proof, yet the verdict will not be disturbed upon a naked question of fact, provided there be sufficient evidence to support the finding; especially where the Circuit Judge is satisfied, and refuses to grant a new trial.” See also, Smith vs. Smith, 29 Ga. Rep., 365. These authorities are conclusive in this case. There is positive testimony here on both sides, and it is difficult to determine in favor of which side it preponderates. It seems to be pretty well balanced, and is just such a case as can be better decided by a Court and jury of the vicinage, than by this Court, upon a mere written statement of what occurred on the trial. Upon the whole, we think the law has been fairly administered in this case, and that it is better for the parties that this litigation be ended.

Judgment affirmed.