Benedict v. Cozzens

Appeal from the Sixth Judicial District.

This was an action to recover damages from the defendants for a malicious prosecution, and the damages were laid at $10,000.

At the October term, 1852, on the first trial, after the plaintiff had made some progress in the cause, he offered certain depositions in evidence, which on objection by the defendants, were rejected by the Court, and thereupon the Court, a ithe instance of the plaintiff, withdrew a juror. On the 28th of December, 1852, on motion of plaintiff’s attorney, and it appearing to the satisfaction of the Court, that the papers in the case had been destroyed by fire, it was ordered by the Court that the plaintiff have leave to file a new complaint. On the 16th of June, 1853, the case was tried and the jury rendered a verdict for plaintiff, and assessed his damages at $8,500. Before proceeding to trial, defendants objected, contending that the withdrawal of a juror was equivalent to a nonsuit, and that a new and different complaint had been substituted, ex parte, without notice to the defendant. The Court overruled these objections, and the defendants excepted. Defendants after-wards moved for a new trial, on the grounds of excessive damages, insufficiency of evidence to justify the verdict, and error in law occurring at the trial. The Judge overruled [382] the motion, on condition that the *plaintiff should within twenty days file a remittitur of $3,000 from the verdict and judgment; whereupon the defendants appealed from the judgment and order denying a new trial.

The Court erred in permitting a juror to be withdrawn, and in not nonsuiting the plaintiff. (Practice Act, § 148, 149, 158.) The Court erred in allowing the substitution of a complaint materially different without leave to defendant to file an amended answer. (8 Ala. 298.) The verdict of the jury was excessive, and for that reason a new trial should have been granted; the condition imposed by the Court shows this.

Permitting a juror to be withdrawn is a matter within the discretion of the Court. (Graham’s Practice, 291, 2d edit.; 8 Cow. 127; Gallison, 364.) The Court, under our practice, “in furtherance of justice,” allowed the withdrawal and •continued the case. The defendant was not prejudiced by the new complaint, as his answer was filed on the day of trial. The power of Court to impose terms, by way of remittitur, is fully settled. (2 Rich. S. C. 507, 512; Sandf. 20; Dibber v. Murphy, 1 How. Miss. 19; 17 Pick. 453.)