William T. Smith and Richard C. Field, Respondents, v. George D. Ferguson & Co., Appellant.
Appeal—-what recital in the record is conclusive as to the proper rendition of a verdict—motion to set aside a verdict as irregular.
A recital in the record on an appeal from a judgment, that the jury rendered a verdict for the plaintiffs and against the defendant, is conclusive upon the question whether the verdict was properly rendered, and cannot be considered as impeached by a statement, found in the case and exceptions, that the clerk received the verdict of the jury, in the absence of the court.
Qumre, whether, in the absence of a motion to set aside the verdict, the alleged irregularity can be considered on an appeal from the judgment alone.
Appeal by the defendant, George D. Ferguson & Co., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 14tli day of March, 1898, upon the verdict of a jury.
The notice of appeal states that an appeal is also taken from an order entered in said clerk’s office on the 15th day of March, 1898, *329denying the defendant’s motion for a new trial, but no such order appears in the case.
Roger M. Sherman, for the appellant.
Percival C. Smith, for the respondents.
Per Curiam :
The only attack made by the appellant on this judgment is that by the consent of the parties the clerk received the verdict of the jury in the absence of the court. It is insisted that a verdict so received, even by consent, is a nullity. It is not necessary to express our opinion on this question, nor is it to be surmised that we regard the objection as well taken. In our opinion the question is not presented to us. The record recites that the jury rendered a verdict for the plaintiffs and against the defendant; and the record cannot be considered as impeached by a statement, found in the case and exceptions, that the clerk received the verdict of the jury. Ho motion was made for a new trial. We think the defendant’s remedy was by motion to set aside the verdict. But conceding that the irregularity of which the defendant complains can be considered on an appeal from the judgment, it is necessary that the record should show that the irregularity exists. If the record is erroneous the appellant should have moved to correct it; but until corrected the record is conclusive to the effect that the verdict was properly rendered, and cannot be impeached collaterally.
The judgment appealed from should be affirmed, with costs.
All concurred:
Judgment affirmed, with costs.