Toohy v. Sarvis. No. 8563. TOOHY v. SARVIS. NEW TRIAL.-Misconduct of Jury.—Irregularity.— Verdict.-Evidence.—Practice. It is irregularity amounting to misconduct on the part of the jury, and good cause for a new trial, that a letter of the losing party, which was attached to a deposition of the prevailing party, and read in evidence, fell into the hands of the jury, with other papers in the cause, although inadvertently, and was read aloud and commented upon by one of the jurors while they were deliberating, and was returned into court with their verdict and the other papers. SUPREME COURT.-Evidence.- Verdict.-The Supreme Court will not disturb a verdict because the evidence is conflicting, if there is any tending to sustain it. From the Ohio Circuit Court. J. B. Coles, for appellant. NIBLACK, J.-Suit by William H. Sarvis against John Toohy, upon a complaint in two paragraphs. The first paragraph was upon a bill of exchange drawn by the plaintiff in his own favor upon, and accepted by, the defendant. The second was upon an open account. There was an answer in several paragraphs, and issue joined. Verdict for the plaintiff; new trial refused and judgment on the verdict against the defendant. The questions discussed by counsel are only such as arose upon the motion for a new trial. It is contended that the verdict was not sustained by sufficient evidence, and that the jury were guilty of misconduct in having with them at their room, while deliberating upon their verdict, certain papers in the cause, including some depositions and other papers, which had been read in evidence to the jury on behalf of the plaintiff. The evidence was irreconcilably conflicting, but there was evidence tending to sustain a verdict for the plaintiff for a sum larger than the amount named in the verdict which was returned by the jury. Toohy v. Sarvis. We can not therefore disturb the verdict upon the evidence. As bearing upon the alleged misconduct of the jury, the affidavits of the bailiff to the jury and clerk of the court, filed in connection with the motion for a new trial, substantially establish the following facts: That after the trial had been concluded and the cause given to the jury, the court adjourned, and, by consent of parties, the jury, attended by their bailiff, were left in possession of the court room; that the papers in the cause, consisting of the complaint, a demurrer, the answer, the reply, a motion to suppress depositions, the summons, and the depositions of one Fletcher and of the plaintiff, with certain letters from the defendant to the plaintiff attached, were inadvertently left on one of the tables in the court room which had been used at the trial; that these papers fell into the hands of the jury while they were deliberating upon their verdict; that, while the jury were so deliberating, one of the jurors read aloud one of the letters attached to one of the depositions, and which had been read in the cause, and commented upon the same to the jury; that, after the jury had agreed upon a verdict, they returned the papers in the cause into court with their verdict. The question for decision is, Did these facts constitute such misconduct on the part of the jury as vitiated their verdict and made it incumbent on the court to grant a new trial? It has been said, upon what seems to us to be good authority, that, where there has been an irregularity which may have affected the impartiality of the proceedings before a jury, such as an improper separation of the jurors, or as having had unauthorized communications, or as having had papers before them bearing upon the matters in controversy without the permission of the court, a new trial ought to be granted, so as to undo whatever wrong, if any, which may have been inflicted. In the case of Hix v. Drury, 5 Pick. 296, the court, in referring to irregularities which may, or which may not, vitiate the verdict of a jury, said: "So where a paper which is Armstrong et al. v. Cavitt et al. capable of influencing the jury on the side of the prevailing party, goes to the jury by accident, and is read by them, the verdict will be set aside, although the jury may think that they were not influenced by such paper, for it is impossible for them to say what effect it may have had on their minds." Short v. West, 30 Ind. 367; 1 Graham & Waterman New Trials, 73; Lotz v. Briggs, 50 Ind. 346. The irregularity complained of in this case amounted to what must be held to have been misconduct on the part of the jury, and, in the light of the authorities cited, ought to have been treated as a good cause for a new trial. The judgment is reversed, with costs, and the cause remanded for a new trial. 78 476 135 379 78 476 137 133 78 476 150 110 78 476 154 423 No. 7332. ARMSTRONG ET AL. v. CAVITT ET AL. DESCENTS.-Second or Other Subsequent Wife.-Life-Estate.-The proviso in section 24 of the statute of descents (section 2487, R. S. 1881) limits the right of a second or other subsequent wife in the lands of the husband, who has no children by her but has children alive by a previous marriage, to an estate in fee for her life only in her share of such lands. SAME.-Creditors of Husband.-Such share of such second or other subsequent wife, in the lands of her husband, is held by her during her life, and, upon her death, descends to his children by a previous wife, free from all demands of his creditors. SAME.-Power of Administrator.-Petition for Sale of Real Estate.- Orders of Court.-Jurisdiction.-Estoppel.-In March, 1866, A. died intestate, the owner in fee simple of certain real estate, leaving S. A., his widow by a second marriage, and the plaintiffs, his children by his first wife, as his heirs at law. At the October term, 1866, of the court of common pleas, the administrator of A.'s estate filed his petition for an order to sell all of said real estate, for the payment of the decedent's debts, of which petition notice was duly given, in the mode prescribed by law. Upon the hearing, the widow, S. A., made default, and the plaintiffs, then infants, Armstrong et al. v. Cavitt et al. answered by their guardian ad litem; and the court then found that S. A. was the owner of a life-estate in one-third of said real estate, and ordered that the whole of said real estate be sold, subject to her said life-estate. On November 24th, 1866, S. A. consented that her interest in the real estate might be sold at the same time the decedent's interest therein was sold, under the order of the court, agreeing to take for her interest such allowance as the court might make her out of the proceeds of such sale. On February 23d, 1867, the administrator of A. sold the said real estate, in accordance with the order of the court and the consent of S. A., to one M., which sale was confirmed by the court, and a deed was ordered to said purchaser. At the next term of the court, the administrator of A. filed his petition, praying the court to declare the interest of S. A. in the proceeds of the sale of the real estate, together with her written agreement to accept a part of the money in lieu of her life-estate therein; and the court found the value of her life-estate in one-third of the proceeds to be a certain sum of money, which was fully paid by the administrator of A., under the order of the court, and accepted by S. A. in full satisfaction of her interest in the real estate. The widow, S. A., died in 1875, and from and under the said M., by regular conveyances, the defendants claimed title to all said real estate. Held, that the foregoing facts constituted no defence whatever to the claim of the plaintiffs to the one-third of the real estate which, upon A.'s death, descended to S. A. in fee simple for her life only, and which, upon her death, descended in fee simple to the plaintiffs, free from all demands of the creditors of A. Held, also, that the administrator of A. was not authorized by law to petition for, and the court of common pleas had no jurisdiction to order, the sale of such one-third, for the payment of A.'s debts. Held, also, that the plaintiffs were not estopped, by any of the facts aforesaid, from asserting their claim and title to such one-third part of the real estate, when, upon the death of S. A., the same descended to them in fee simple. PARTITION.-Statute of Limitations.-An answer to a complaint in partition, that the cause of action did not accrue within five years before the commencement of the suit, nor within two years after the plaintiffs became of full age, is bad on demurrer, for want of sufficient facts. From the Rush Circuit Court. G. B. Sleeth and J. W. Study, for appellants. Howk, J.-In this action the appellants, William B. Armstrong, Mary E. Kirkpatrick and George W. Kirkpatrick, her husband, Aaron G. Armstrong and Thomas H. Arm Armstrong et al. v. Cavitt et al. strong, the plaintiffs below, complained of the appellees, John Cavitt and Amanda Cavitt, his wife, defendants, and alleged in substance in their complaint, that the appellants, except said George W. Kirkpatrick, were the children and only heirs at law of John N. Armstrong, late of Rush county, deceased, who died intestate, on the 13th day of March, 1866; that, beside the appellants, the said John N. Armstrong left, surviving him, Samantha Armstrong, his widow, who was his second wife, without children, the said appellants being the children of said decedent by his first wife; that, at the time of his death, the said decedent was the owner in fee simple of certain real estate, particularly described, in Rush county; that at the death of said John N. Armstrong, the one-third part in value of said real estate descended to his said widow in fee, during her natural life, and at her death to the said appellants; that the said Samantha Armstrong departed this life on the 1875, and that, at her death, the said undivided one-third part of said real estate descended to the said appellants, except said George W. Kirkpatrick, in equal shares in value, in fee simple; and that the said appellee John Cavitt was then in the possession, and claimed to be the owner, of the whole of said real estate, but that, in truth and in fact, he was the owner only of the undivided two-thirds part in value of said real estate. Wherefore the appellants prayed that partition be made of said real estate, and their share thereof be set off to them, and for other proper relief. day of The appellees answered in five paragraphs, to the fourth of which the appellants' demurrer, for the alleged insufficiency of the facts therein to constitute a defence to their action, was overruled by the court, and to this ruling they excepted. They then refused to reply to said fourth paragraph of answer, and the court rendered judgment against them, on their demurrer to said paragraph, for the appellees' costs. In this court the appellants have assigned, as error, the decision of the circuit court, in overruling their demurrer to the fourth paragraph of the appellees' answer. |