done. effect of SEC. 2804. When the verdict is announced, either party may Polled: how require the jury to be polled, which shall be done by the court, R. 3074. or clerk, asking each juror if it is his verdict. If any one answer in the negative, the jury must be sent out for further deliberation. SEC. 2805. When, by consent of the parties and the court, Sealed verdict: the jury have been permitted to seal their verdict and separate R.23075. before it is rendered, such sealing is equivalent to a rendition and C. 51, 1785. a recording thereof in open court, nor shall such jury be polled or permitted to disagree thereto, unless such a course has been agreed upon between the parties in open court and entered on the record. In case of a sealed verdict, the jury should not be polled, but if they are, the dissent of a juror to the verdict will not affect its validity: Bingham v. Foster, 37-339. Where a jury sealed up their verdict and left it with the bailiff to be handed to the clerk, and then separated without the parties having consented to a verdict being rendered in that manner, held, that the separation did not necessarily render the verdict void: Cook v. Walters, 4–72; Heiser v. VanDyke, 27-359. R. 73077. fined. SEC. 2806. The verdict of a jury is either general or special. May be general A general verdict is one in which they pronounce generally for or Special the plaintiff or for the defendant upon all, or upon any of the issues. SEC. 2807. A special verdict is one in which the jury finds pecial defacts only. It must present the ultimate facts as established by the R. 23078. evidence, and not the evidence to prove them, so that nothing remains to the court but to draw from them its conclusions of law. [The words "and not the evidence,” in the third line, as they stand in the original, are omitted in the printed code.] In an action involving an issue as jury that defendant signed the in- when submit SEC. 2808. In all actions, the jury, in their discretion, may Interrogato render a general or special verdict; and in any case in which they ries: how and render a general verdict, they may be required by the court, and ed. must be so required on the request of any party to the action, to 3079. find specially upon any particular questions of fact to be stated to them in writing, which questions of fact shall be submitted to the attorneys of the adverse party before the argument to the jury is commenced. The questions of fact presented to the jury for special findings must be founded upon the material facts in the pleadings in such form as to elicit conclusions of fact as established by the testimony, and not what the evidence was, nor conclusions of law: Hatfield y. Lockwood, 18-296; and it is not error to refuse to instruct the jury to make a special finding upon a fact which is immaterial: Bonham The questions so submitted should C. '51, 1786-7. Special controls general. R. 3980. Money: amount of assessed. R. 3081. C. 51, 1788. Joint or several Form of R. 23081. C. '51, 1790. Entered of record. R. 23085. C. 51. 1789. answered without danger of confu- Where a party presented his in- SEC. 2809. When the special finding of facts is inconsistent with the general verdict, the former cont: ols the latter, and the court may give judgment accordingly. To entitle to a judgment upon a special verdict, against a general verdict in favor of the other party, the special findings must be inconsistent with the general verdict and sufficient of themselves when taken together with the facts admitted by the pleadings, to establish or defeat (as the case may be) the right to recover: Hardin v. Branner, 25–364. It is only when the general and spcial verdicts are so inconsistent that both cannot stand, that the latter will be allowed to defeat the forner; and where there is evidence to sustain the general ver iet, it will stand, although the special verdict do not seem to sustain it: Phoenix v. Lamb, 29–352. See also § 2858 and notes. SEC. 2810. When, by the verdict, either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of such recovery. SEC. 2811. Where there are several plaintiffs or defendants, whether the pleadings are joint or several, the verdicts shall be moulded according to the facts and to suit the exigencies of the case. SEC. 2812. The verdict shall be sufficient in form if it expresses the intention of the jury. As to sufficiency in form, see notes I to § 2803. SEC. 2813. The verdict shall in all cases be filed with the clerk and entered upon the record, after having been put into form by the court, if necessary. SEC. 2814. Trial by jury may be waived by the several parties Waiver of trial to an issue of fact in the following cases: by jury. R. 23087. 1. By suffering default or by failing to appear at the trial; 2. By written consent, in person or by attorney, filed with the clerk; 3. By oral consent in open court, entered in the minutes. Consent of par REFERENCE. SEC. 2815. All or any of the issues in an action, whether of fact or of law, or both, may be referred upon the consent of the parties required. ties, either written or oral, in court entered upon the record. There cannot be a reference in an a reference, neither can afterward action for divorce, even by consent of demand a trial by jury: Hewitt v. parties: Hobart v. Hobart, 45-501. Egbert, 34-185. Where the parties have agreed to K. 309. 1794. SEC. 2816. When the parties do not consent, the court may, When done upon the motion of either, or upon its own motion, direct a reference in either of the following cases: 1. When the trial of an issue of fact shall require the examination of mutual accounts, or when, the account being on one side only, it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove the account, in which case the referee may be directed to hear and and report upon the whole issue, or upon any specific question of fact involved therein; or, 2. When the taking of an account shall be necessary for the information of the court before judgment, or for carrying a judgment or order into effect; or, 3. When a question of fact shall arise in any action by equitable proceedings, in which case the court, in the order of reference, shall prescribe the manner in which the testimony shall be taken on the trial. PAR. 1: The cases intended to be included in this enumeration are only those which were formerly cognizable in equity, and it is only in such cases that a reference can be made without the consent of the parties. Otherwise, the right of trial by jury would be infringed: McMartin v. Bingham, 27-234. But where accounts were to be examined and a series of calculations made, held, that the remedy by means of a reference would be more complete and adequate, and that, PAR. 3: A mortgage foreclosure, without con- decide. SEC. 2817. Where not otherwise declared in the order of refer- Majority may ence, all the referees must meet to hear proofs, arguments, and to R. 23091. deliberate, but a decision by the majority shall be regarded as C. '51, 1652. their decision. SEC. 2818. When appointed by the court, the judge thereof Vacancies. may fill vacancies in vacation. SEC. 2819. The referee shall stand in the place of the court, and shall have the same power, so far as necessary, to discharge his duty. eree although he could not after a Although the report of a referee is like the verdict of a jury or a finding by the court, yet under the language of $28441, a party may dismiss his The referee is not the court: Hoaction after a submission to the ref-bart v. Hobart, 45-501, 505. R. 392. Stand in place of court. of. SEC. 2820. The trial by referee shall be conducted in the same Trial by: power manner as a trial by the court. He shall have the same power to R. 3094. summon and enforce by attachment, the attendance of witnesses, to punish them as for a contempt for non-attendance or refusal to be sworn or to testify, and to administer all necessary oaths in the trial of the case, to take testimony by commission, allow amendments to pleadings, grant continuances, preserve order, and punish all violations thereof. R. 3095. SEC. 2821. The report of the referee on the whole issue, must Report: judg state the facts found and the conclusions of law separately, and mento shall stand as the finding of the court, and judgment may be entered thereon in the same manner as if the action had been Finding of facts. R. ¿3096. exceptions. tried by the court; the report may be excepted to and reviewed in like manner. After a referee's report has been certifiying up the evidence, etc., and filed, a party should not be allowed the proper method of curing an omisto raise a new issue by amended sion in that respect: Smith v. Harlan, pleadings and have a re-submission 49-101. without proper excuse for the delay being shown: Newell v. Mahaska Co. Savings Bank, 51-178. The court may refer the case back to the referee to have the findings of fact made more specific, but the additional findings should be confined to matters specified in the order recommitting the case: Sage v. Nichols, 51-44. The report of the referee is to be regarded as the verdict of a jury, and a judgment thereon should not be reversed unless there is such an absence of evider ce in its support as to authorize the conclusion that it was not the result of the exercise of honest, intelligent, and unprejudiced judgment: Taylor v. French Lumbering Co., 47-662; Moore v. Brown, 49-130; and see Childs v. Shower, 18-261; Johnson v. Johnson, 19-74; Whichler v. Steamboat Ewing, 21240; nor can it be reviewed by the supreme court unless all the evidence is contained in the record: Haywood r. Woods, 28-563; and a certificate of the referee that the record contains the substance of all the material evidence, will not warrant such review: Sears v. Selew, 28-501; but, under Rev. § 3096, an exception to this rule was made in case of a reference in equitable actions, triable by the first method, and in such a case it was held that the court must try the case upon the evidence, and not upon the findings of facts by the referee: Wilgus v. Gettings, 21-177. As to the duty of the referee in The court appointing a referee is not authorized to review the evidence taken before him, or his rulings, unless such evidence and rulings are preserved by bill of exceptions: Inman v. Jamison, 18-22. And if the finding is claimed to be against the evidence, all the evidence should be preserved and certified by the court: Oliver v. Townsend, 16-430. But a party may have a review by the court of the findings of law and fact made by the referee, irrespective of whether any exceptions thereto were taken before him. The power of the court in acting on the report of a referee is not merely appellate: Edwards v. Cottrell, 43-194. Exceptions before the referee need only be taken to make that of record which would not otherwise appear. Error in his conclusion of law may be taken advantage of by motion to set aside the report, or by exceptions filed upon the coming in of the report: Washington Co. v. Jones, 45-260. The exceptions to the referee's report contemplated in this section, are those filed in the court to which the report is made, and not the exceptions taken before the referee under § 2823: Michael v. Longman, 42-484. And where no such exceptions were taken, either to the report or to the judg ment thereon, a review cannot be had in the supreme court, even though. the report was filed or the judgment rendered in vacation: Roberts v. Cass, 27-225. SEC. 2822. When the reference is to report the facts, the report shall have the effect of a special verdict. See notes to preceding section. SEC. 2823. The referee shall sign any true bill of exceptions To sign bill of taken to any ruling by him made in the case whereto any party demands a bill of exceptions; and the party shall have the same rights to obtain such bill as exist in the court, and such bill sh.ll be returned with the report. R. & 3097. Parties may agree on. As affecting this section, see notes | to § 2821. SEC. 2824. In all cases of reference, the parties, except when a minor may be a party, may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered C. 51, 1651, accordingly; and if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be R. 3098. 1795. persons free from exception, or the court may allow each party to select one, and itself to select a third. vacation: how. SEC. 2825. A judge of the court, when a case is pending, may, Appointed in in vacation, upon the written consent of the parties, make an order of reference. In such case the order of reference shall be written in the written agreement to refer, and shall be filed with the clerk of the court with the other papers in the case. SEC. 2826. The referee must make affidavit well and faithfully Must be sworn. to hear and examine the case, and make a just and true report therein according to the best of his understanding. The affidavit shall be returned with the report. If the affidavit here required is with the report is not a fatal objecshown to have been made, but lost, tion to the report. The fact that the its absence will not warrant the set-referee was duly sworn may be otherting aside of a referee's report: wise shown: Shindler v. Luke, 43Sears r. Sellew, 28–501. 89. A failure to return the affidavit R. 23100. order as to pro SEC. 2827. The order shall not be made until the case is at Issues must be made up; issue as to the parties whose rights are to be examined on the court to make reference. The order may direct when the referee shall pro- cedure. ceed to a hearing, and when he shall make his report; but in R, 3102 the absence of such direction, he shall do so on the morning of the tenth day after the day on which was made the order of reference, and shall file his report as soon as done; of the time thus fixed or determined the parties shall take notice, and non-attendance of either party within an hour of such time shall be attended with like consequences as if the case were in court, which consequences shall be reported as any other fact or finding of the referee. 1 R. 3103. SEC. 2828. The referee must be called on by the court to ac- Must accept: cept or refuse the appointment, and his acceptance shall be record made of. entered of record; and he shall be under the control of the court, who may, on the motion of either party, make proper orders with a view to his proceeding with all due dispatch, and the court or judge may, on his motion, on good cause shown, enlarge the time for making his report. Issue process: administer 51, 2 1€54. Mode of pro cedure in court SEC. 2829. Any one of such referees may issue and sign sub poenas and other process, and administer oths necessary for the discharge of their duties and the full exercise of all their powers. SEC. 2830. The form of procedure which in the court itself regulates service, pleading, proof, trial, and the preparation, progression, and method of each of these, shall obtain before the obtains. referee; and in every incident of the proceeding before him, the rights and responsibilities of parties, and of their attorneys, and of the referee, shall be the same as if the referee was the court engaged in the same matter. Section applied: Keokuk Co. v. | Howard, 43-354. R. 3105. EXCEPTIONS. when taken. SEC. 2831. An exception is an objection taken to a decision of what and the court or party acting as the court on matter of law. The party R. 3106. objecting to the decision must do so at the time the same is made C. '51, 1805. |