The proceedings on December 1st are thus stated in the record:
Upon this verdict a judgment was entered. Proceedings in error were taken, but were dismissed by the court of [174 U.S. 190, 193] appeals on account of a failure to have the bill of exceptions prepared in time. Thereafter, and at a succeeding term, the defendant filed a motion to vacate the judgment on the ground that there was no valid verdict, which motion was overruled. On appeal to the court of appeals this decision was reversed, and the case remanded, with instructions to vacate the judgment, to set saide the verdict, and award a new trial. 12 App. D. C. 122. This ruling was based on the proposition that the verdict was an absolute nullity, and therefore the judgment resting upon it void, and one which could be set aside at any subsequent term.
A. A. Berney, for plaintiff in error.
S. T. Thomas and A. B. Duvall, for defendant in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
The single question presented by the record, the right to review which is sustained by Phillips v. Negley, 117 U.S. 665 , 6 Sup. Ct. 901, is whether the verdict, returne under the circumstances described, was an absolute nullity, or at least so far defective that no valid judgment could be entered upon it. Such is the contention of the defendant. On the contrary, the plaintiff insists that, whatever irregularities may have occurred or be apparent in the proceedings, they are simply matters of error, to be corrected on direct proceedings within the ordinary time, and in the customary manner for correcting errors occurring on a trial. Is the defect or irregularity disclosed a mere matter of error, or one which affects the jurisdiction? The opinion of the court of appeals, announced by Mr. Justice Morris, is an exhaustive and able discussion of the question, arriving at the conclusion that the verdict was an absolute nullity, and therefore the judgment based upon it one that could be set aside, not merely at the term at which it was rendered, but at any subsequent term. [174 U.S. 190, 194] While appreciating fully the strength of the argument made by the learned judge, we are unable to concur in the conclusions reached. That the verdict returned expressed at the time it was signed the deliberate judgment of the 12 jurors, cannot be questioned. That it remained the judgment of the 11 at the time it was opened and read is shown by the poll that was taken, and that it was still the judgment of the absent juror at the time he forwarded it to the court is evident from the testimony. So the objection runs to the fact that at the time the verdict was opened and read each of the 12 jurors was not polled, and each did not then and there assent to the verdict as declared. That, generally, the right to poll a jury exists, may be conceded. Its object is to ascertain for a certainty that each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent. It is not a matter which is vital, is frequently not required by litigants; and, while it is an undoubted right of either, it is not that which must be found in the proceedings in order to make a valid verdict. Take the case suggested on argument. Supposing the 12 jurors are present, and the defeated party insists upon a poll of the jury, and that right is denied, can it be that a verdict returned in the presence of the 12 by the foreman, without dissent, is by reason of such denial an absolute nullity? Is not the denial mere error, and not that which goes to the question of jurisdiction? There are many rights belonging to litigants; right which a court may not properly deny, and yet which, if denied, do not oust the jurisdiction, or render the proceedings absolutely null and void.
The line of demarkation between those rulings which are simply erroneous and those which vitiate the result may not always be perfectly clear, and yet that such demarkation exists is conceded. This ruling of the trial court, conceding it to be error, is on the hither side of this line, and could only be taken advantage of by proceedings in error. It is not so vital as to make the verdict a nullity, or the judgment entered thereon void. Suppose, after the jury, at the end of a protracted trial, have agreed upon the verdict, and come into [174 U.S. 190, 195] court to announce it, and after it has been read in open court, but before a poll can be had, one of the jurors is suddenly stricken dead, can it be that the whole proceeding theretofore had becomes thereby a nullity? Can it be that, after each of the jurors has signed the verdict, and after it has been returned, and each is present, ready to respond to a poll, the mere inability to complete the poll and make a personal appeal to each renders the entire proceedings of the trial void? We are unable to assent to such a conclusion. The right to poll a jury is certainly no more sacred than the right to have a jury; and under many statutes a trial of a case, in which a jury is a matter of right, without a waiver thereof, has again and again been held to be erroneous, and subject to correction by proceedings in e ror. But it is also held that an omission from the record of any such waiver is not fatal to the judgment.
If a trial without a jury, when a jury is a matter of right, and no waiver appears of record, is not fatal to the judgment, a fortiori the minor matter of failing to poll the jury when it is clear that the verdict has received the assent of all the jurors cannot be adjudged a nullity, but must be regarded as simply an error, to be corrected solely by direct proceedings in review. See, in reference to the distinction between matters of error and those which go to the jurisdiction, the following cases: Ex parte Bigelow, 113 U.S. 328 , 5 Sup. Ct. 542; In re Coy, 127 U.S. 731 , 8 Sup. Ct. 1263; In re Belt, 159 U.S. 95 , 15 Sup. Ct. 987; In re Eckart, 166 U.S. 481 , 17 Sup. Ct. 638.
We are of opinion that the defect complained of was merely [174 U.S. 190, 196] a matter of error, and does not render the verdict a nullity. The judgment of the court of appeals will therefore be reversed, and the case remanded, with instructions to affirm the judgment of the supreme court of the District of Columbia.