to the jury room and in the absence of all the attorneys and parties to the suit, the clerk and other officers of the court received the verdict of the jury. The judge then discharged the jury and delivered the verdict to the clerk when the court reconvened that morning. It was held that a new trial should be granted for the reason that a case is submitted to a jury in open court and it is contemplated that a return of the verdict be made publicly in the court where the parties are presumed to be in waiting and ready to avail themselves of their respective rights, and, under the circumstances, they were deprived of that natural and absolute right.
In the case of State of Oregon v. Waymire, 52 Or. 281, 97 P. 46, 21 L.R.A., N.S., 56, 132 Am.St.Rep. 699, the defendant and his counsel, without leave of court, voluntarily retired from the court after the case had been submitted to the jury and before the court had adjourned. Counsel for the defendant requested the deputy sheriff to telephone him when the jury was ready to report. The deputy sheriff failed to call defendant's counsel in accordance with his promise. It was held that it was the duty of the counsel for the defendant to be present until the closing of trial and the court is not obliged to await his pleasure but may proceed without him.
In the case of Fitzgerald v. Clark, 17 Mont. 100, 107, 139, 42 P. 273, 30 L.R.A. 803, 52 Am.St.Rep. 665, the attorney for the appellant had made arrangements with the court bailiff that when the jury agreed upon a verdict, he, the court bailiff, should call counsel. The bailiff omitted to send for appellant's counsel and, as a result thereof, he was not present when the verdict was returned. The court held that counsel made the bailiff his agent for this purpose, and, if such agent omitted to do that which he had agreed to do, counsel did so at his risk since counsel had the privilege of being in the court, if he wished, when the verdict was received and his accidental absence at that time was not due to any order or action of the court, or any conduct of the counsel or parties on the other side. The court refused to award a new trial.
In the case of Chapman v. Chicago & Northwestern Ry. Co., 26 Wis. 295, 296, 7 Am.Rep. 81, the jury asked for additional instructions which were given in open court when the appellant or his attorney was not present. The court held there is no legal obligation on the court to send for absent attorneys, and to delay proceedings until they appear.
In the case of Rottmund v. Pennsylvania R. Co., 225 Pa. 410, 74 A. 341, a jury was discharged from further consideration in the case and recalled an hour later to have the written verdict conform to the verdict actually received, which was an hour previous. It was held too late for the defendant to move for a poll of the jury.
From a reading of the many authorities to which I have had occasion to refer, I can find no legal obligation on the part of the Court, any officer of the Court, the Clerk of Courts, or any of his employees, to send for attorneys and counsel before a verdict is received. It has been my observation, however, that it has become a custom or practice for the employees of the Clerk of Courts or Court officers to send for attorneys and counsel if a request is made to do so. I believe this custom or practice is sound, and I am far from wishing to discourage it, and I think it should be observed in all cases where the business or convenience of the Court will allow it. It is unfortunate and the Court is extremely sorry it was not observed in this case, but I believe it would be against the settled weight of authority to hold as a matter of law that it is the duty of the Court to regulate the business of the Court so that the request of counsel made to an employee or attache of the Court, or the Clerk of Courts, to send for absent counsel, is carried out, or to await their arrival before proceeding to take the verdict of a jury in causes in which they are interested. I believe it is the duty of counsel to be present in Court when their causes are pending, that is, from the time that the jury is impaneled until the jury is discharged; and if they are not, and for reasons personal to themselves seek the assistance of an employee or attache of the Court, or the Clerk of Courts, or any of his employees, it is at their own risk and not at the risk of the other party to the litigation. To express myself in the shortest possible terms, I believe the custom is fine to notify counsel where it is possible to do so, but such courtesy extended to counsel by the various officers of the Court is a matter of grace or favor on the part of said employee, and under no circumstances is there any legal obligation on the part of the Court to notify counsel that his presence is required before a matter can be considered in which they are concerned. If the rule were otherwise, that the Court must await the notion and presence of counsel involved in litigation, conditions would become intolerable, for then, no business could be done by the Court and no proceedings taken except at the favor or choice of counsel.
It is, therefore, my opinion that when counsel representing the plaintiff requested the Court Crier and an employee in the office of the Clerk of Courts to call him before the verdict of the jury was returned, he did so at his own risk and the failure of the clerk or attache of the court to call him, as he had requested, should not in any way involve the rights of the opposing parties to the litigation who are not parties to such arrangement. Furthermore, it is the duty of counsel representing litigants to be present in Court from the time that the jury is impaneled and until a verdict has been reached, or the jury discharged. This is true although counsel involved in federal court are generally interested in many matters of business and it, no doubt, will be an extreme hardship to follow said responsibility in this respect. However, if counsel secures the aid or assistance of some other person to keep abreast with the progress of the trial after the jury has retired for deliberation, such an arrangement is at the risk of counsel concerned and the prejudice which arises from a misplacement of trust cannot be visited on the opposing party to the litigation who had no part in such an arrangement.
It is my further opinion that the verdict as recorded by the jury in open court is the verdict of the jury and that the form prepared in the jury room, though signed by each of the jurors and handed to the clerk, is no part of the record and has no significance whatsoever after the verdict is read to the jury and no dissent is offered by any of the jurors. Such a verdict when received and recorded by the Court constitutes a valid and legal verdict. When no juror objects or dissents to the announcement of the verdict, and the jury is discharged from further consideration of the case, such action bars the right of any party to the litigation to poll a jury subsequent thereto.
I am aware that it is the duty of the Court to fairly, impartially and justly administer the law and permit nothing to be done, by way of omission or commission to defeat the ends of justice. This case was carefully and extremely well tried by counsel for both party litigants, and no error exists in the record in any way whatsoever. Regardless of my personal feeling in the matter or the sympathy which I carry for counsel representing the plaintiff, I find it my duty to follow the law as it has been stated in many states of the Union and referred to somewhat generally in many opinions in the United States courts. I can, therefore, arrive at no other conclusion than the motion for leave to poll the jury was made after the verdict was duly returned by the jury and recorded by the Court, and since the jury was discharged from further consideration of the case, no authority exists in law to grant the leave to poll the jury and under the circumstances which arose, as a result thereof, direct a mistrial.
The motion of plaintiff for a new trial or an order directing a mistrial is, therefore, refused.
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