
    R. Lloyd v. C. E. Brinck and another.
    1. District judges have great legal discretion in all causes tried before them, and should exercise it to the end that the laws may be enforced, and justice and equity be administered to all; but that discretion is a sound and legal discretion, and to be exercised in compliance with known roles and principles of law. That discretion is not the mere arbitrary will and pleasure of the judge.
    2. When a jury renders a verdict in proper form, and responsive to the issues presented by the pleadings and submitted to them by the court, no discretionary power is vested in the court to set that verdict aside upon its own motion, notwithstanding the verdict maybe against the weight of the evidence, or in disregard of the instructions of the court; but the party aggrieved may, by his motion for a new trial or in arrest of judgment, call forth the judicial power of the court to prevent wrong and secure the administration of the law.
    3. The entry of judgment upon a valid verdict involves no judicial or discretionary powers, but is simply a ministerial act; and to enforce its performance by the District Court, the writ of mandamus will issue from the Supreme Court in a proper case.
    4. In an action of debt, the jury returned a verdict in favor of the plaintiff and for a specified amount. The court below received the verdict, but immediately, and of its own motion, set it aside and granted a new trial. On a subsequent day of the same term, the plaintiff moved for judgment in accordance with the verdict; which motion was overruled. Held,, that the case is one in which an appeal is not an adequate remedy ; and therefore the writ of mandamus is awarded by this court to compel the court below to enter judgment upon the verdict.
    Application to this court for the writ of mandamus.
    
    
      Lloyd was plaintiff in the court below. In November, 1867, he brought suit in the District Court of Marion county, against Mrs. C. E. Brinck, to recover $18,000, which she was alleged to owe him by her promissory note.
    Without unnecessary detail of the pleadings or evidence in the court below, it suffices to state, that on the trial of the cause, in May, 1871, the jury returned their verdict, in regular form, in favor of Lloyd, for the amount of Ms debt and interest; “whereupon,” says the record of the court below, “the court ordered that the verdict rendered by the jury in the above stated cause be set aside, and that a new trial be granted.” At a later day of the term, the plaintiff moved that judgment be rendered in accordance with the verdict, but the motion was overruled, and he excepted.
    No reason was assigned by the court below, so far as the record shows, for its arbitrary order setting the verdict aside, and granting a new trial; but the charge of the court to the jury was strongly in favor of the defendant, who was a married woman when the note was given. It may, therefore, be safely inferred that the jury’s disregard of the instructions was the cause which superinduced the order.
    This proceeding in the Supreme Court was instituted by an original petition under oath, filed in this court on the first of July, 1871. It impleaded Mrs. Brinck, and also J. D. McAdoo, the judge of the District Court, as defendants. Its allegations recapitulated the pleadings and proceedings in the District Court, and exhibited a transcript of the record of the case in that court. It prayed that the defendants be cited to show cause why a peremptory mandamus should not issue, commanding the defendant McAdoo,as judge of the District Court, or any other judge exercising the powers and duties of judge of such District Court, to render final judgment according to the verdict in the cause, and to ■cause the same to be entered in the minutes of the •court as a record thereof.
    On this petition Mr. Justice Ogden, in chambers, on the first of July, 1871, indorsed Ms fiat to the clerk of the Supreme Court, directing him to issue scire facias, returnable on the first day of the ensuing term, and requiring the defendants then to show cause why a peremptory mandamus should not be granted in accordance with the prayer of the petition. Thereupon the •clerk issued a precept to the sheriff of Marion county to cite the defendants to show cause as required by the •order of the Judge. This precept was served on the defendants, and Mrs. Brinck filed her answer on the twenty-fifth of ¡November, 1871. In her answer she excepted to the petition on three grounds, viz.:
    1. The cause, as shown from the proceedings, is still pending in the District Court, and is not subject to revision by mandamus.
    
    2. The action of the District Court in granting or refusing a new trial is matter of judgment or discretion of the court, and cannot be revised on mandamus.
    
    3. The remedy is to prosecute an appeal, or writ of •error, on the final trial in the District Court, if injustice should be done the plaintiff.
    Besides these exceptions, the answer set forth an attempted justification of the action of the judge of the District Court. This justification was based upon the •contumacy of the jury in disregarding their instructions ; and upon the coverture of the defendant Brinck, .and her consequent incapacity to contract, at the date of the plaintiff’s demand.
    Upon this state of pleadings in the Supreme Court-the cause came to hearing.
    
      
      J. H. Rogers, A. W. O. Hicks, and W. L. Robards, for the relator Lloyd.
    
      Culberson & Mabry, for the respondents.
    —1. The district judge acted in a judicial capacity when he determined that the verdict in this case should be set aside, and a new trial awarded the defendant. The question presented to the judge by the unauthorized action and conduct of the jury in returning a verdict wholly unsustained by the evidence, and, in view of the facts, in a spirit of defiance to the instructions of the court, involved the exercise of judgment and discretion, and his action cannot, therefore, be revised on mandamus. (United States v. Lawrence, 3 Dallas, 42; Paulding v. Decatur, 14 Peters, 599; Ex Parte Crane et al., 5 Peters, 190; Arberry v. Beavers, 6 Texas, 457.)
    
      2. While the statute regulating new trials seems to. contemplate a written application therefor, in which the grounds relied on shall be set out, and that none other-than those specified shall be heard, yet it is insisted that nothing more was contemplated by this statute than that the party making the application should call the attention of the court to some one or more of the grounds upon which new trials are allowed. It was not intended to deny to the court the right to consider grounds not specified in the motion, or, ex officio without any motion, to set aside a verdict and award a new trial. (Sweeney v. Jarvis, 6 Texas, 44.)
    3. The verdict in this case was clearly contrary to the evidence, and to the charge of the court. More than that, it was manifestly without evidence or law to support it. It was not rendered by inadvertence or mistake. It was not a result arrived at after weighing conflicting testimony ; but it was a deliberate effort on the part of the jury to disregard the law of the case,, as given them by the court. In proof of this, we refer the court to the statement of facts. “There is nothing in the laws or Constitution, or in the great principle of jury trials, which can justify, or for a moment tolerate, a verdict without evidence, or contrary to all evidence,” especially when returned by the jury in the open, avowed, and manifest disregard of the law of the case. (Hall v. Page, 4 Ga. Rep., 428; Graham and Waterman on New Trials, 1396.)
    4. A mandamus is an extraordinary remedy, and will not be allowed if redress can be afforded in any other mode. The party who seeks it must show a clear legal right, and a corresponding obligation on the part of the officer. The plaintiff presents a verdict manifestly contrary to the evidence, and admitted by the jury in their action, to be returned contrary to the charge, and in opposition thereto; and asks that the judge may be required to set aside a new trial granted, and to enter up a judgment upon the verdict., Has the plaintiff shown that he has a clear legal right to a judgment on this verdict ? The jury had no power to render a verdict contrary to the evidence, and against the charge of the court. A verdict thus worthless, without evidence to support it, in opposition to the law of the case, and in disregard to the instructions of the judge, can furnish no sufficient predicate to base a clear-legal right upon. What principle in the law, or the Constitution, or the laws regulating trials by jury, would require a judge for a moment to tolerate such a verdict % (Arberry v. Beavers, 6 Texas, 457.)
   Ogden, J.

An alternative writ of mandamus was issued, and served on the defendants in this cause, to show cause why a peremptory mandamtos should not issue to the said J. D. McAdoo, judge of the eighth judicial district, commanding him to enter up a final judgment in a certain cause tried before him, in the county of Marion, wherein the said Richard Lloyd is-plaintiff, and C. E. Brinck is defendant.

The questions for determination in this cause will necessitate an inquiry into the judicial authority and discretionary powers of the district judge over a cause while being tried before him, and more especially that discretionary authority over the verdict of a jury, when rendered in open court, according to the forms of law. Judges, in the trial of all causes before them, should from necessity have and exercise great legal discretion in every stage of the trial, to the end that the laws may be enforced, and justice and equity administered to all.. But that discretion should be a sound and legal discretion, exercised in compliance with known rules, and principles of law; and not the arbitrary will and pleasure of the judge presiding. Under our system of legal jurisprudence, it is the office and duty of the judge to preside over and direct the investigation into the legal rights and responsibilities of his fellow man; to decide all questions of law that may arise,, and to receive and record the verdicts of the juries, who are the exclusive judges of the facts of a case. It is the province of the judge, or court, to decide what facts are legitimate and proper to be submitted, to a jury; but when once submitted, the court loses all further control over those facts, until directed what final judgment to enter, by the verdict of the jury. The verdict is the judgment of the jury upon the facts submitted to them, and the judgment of the court must follow the verdict, and that alone. It therefore follows, that the entry of the judgment of the court involves no judicial or discretionary powers, but is simply a ministerial act, which follows the verdict as a matter of course. (Com. Gen. Land Office v. Smith, 5. Texas, 471.) It is true that the law makes it the duty of the jury to decide the issues presented by the pleadings, and the law as given them by the court; and where the jury, in violation of their solemn oaths, find a verdict upon issues not presented, or where they find their verdict upon a portion only of the material issues presented, or where the verdict itself is fatally defective, in either case the verdict would be void, and no judgment could be entered. It is also believed, that should a jury find a verdict without any evidence to support it, the court would be justified in treating it as a nullity. But when the verdict is responsive to the issues presented by the pleadings, the law, and the evidence, and when it is in due form, it is believed that the court has no discretion in the matter, and must enter the judgment in conformity therewith, notwithstanding an injustice may be done thereby.

In the case of Claiborn v. Tanner, 18 Texas, 68, Justice Wheeler says: “It is upon that which the jury have found, not what they might or ought to have found, that the court proceeds to render judgment. If the court might look to the evidence outside of the finding of the jury, for the facts on which to give judgment, the verdict might be wholly disregarded, and the right of trial by jury wholly defeated.” If, therefore, the verdict of the jury was, in this case, in proper form, and responsive to the issues presented by the pleadings, we are of the opinion that it relieved the court of any discretion, or revisory power over it, notwithstanding it may have been against the weight of evidence, or the law as given by the court. Juries may, and undoubtedly do, commit many errors, and render unjust if not oppressive verdicts ; but the law has provided a corrective for every error, and the party aggrieved may, through a motion for a new trial, or in arrest of judgment, call forth the judicial powers of the court, to prevent a wrong, and to secure the administration of law ■and justice. This appears to be the positive requirement of the law, made mandatory by our statutes. (Paschal’s Digest, Arts. 1465-1470 and 1473.)

Upon examining the record in the cause of Richard Lloyd v. C. E. Brinck, we discover no such error in the verdict of the jury as would render the same wholly void, and upon which no judgment could be rendered. It is entirely responsive to the prayer of the plaintiff’s petition, and the pleadings in the cause; and we are not prepared to say that the verdict is wholly without .foundation in the evidence ; and yet the court received the verdict from the jury, and ex efficio refused to enter up a judgment, but set this verdict aside, and ordered a new trial. We must, therefore, decide that it was the duty of the court to have received the verdict, and to have entered up a judgment on the same, and to have left it for the party aggrieved, by motion or otherwise, to have called forth the judicial powers of the court, as provided by law, to determine the correctness or invalidity of the verdict and judgment. It then becomes highly important to determine the proper remedy for such an error. The respondents herein contend that the setting aside of a verdict, and granting a new trial, is a judicial act, to be exercised at the discretion of the court, and to be corrected only after a final judgment in the cause, and then upon an appeal to a higher tribunal. This certainly is the proper and legitimate remedy in all ordinary cases, where ultimate and complete justice may finally be obtained ; but there may arise a case where an appeal from a final judgment would be wholly inadequate if not completely unattainable, and the party aggrieved be wholly without a remedy.

In the cause at bar, we have no reason to reflect upon the motives or intentions of the court in setting aside ■the verdict of the jury, and believe that the action of the judge was prompted by a desire to administer strict ■and impartial justice; but we are unable to measure the ..damages which may have already resulted to the plaintiff or defendant, or which may arise before another trial could be had. And if we adopt the proposition, that the District Court has ex officio unlimited control .over every verdict of a jury, then we must admit the possibility that on the next trial the verdict of the jury ;and the ruling of tho court will be the same as before, .and might continue thus, to the total denial of justice. We are therefore forced to the conclusion that an .appeal on a final judgment in this case (if such judgment ever be reached) would not be an adequate legal remedy, and that therefore the party had a right to re,sort to another and more complete remedy.

The remedy sought by the relator in this cause is -mandamus, to compel the district judge to enter up judgment on the verdict of the jury, found on the trial of his cause in that court. And we are of opinion that he is entitled to that remedy. That a writ of mandamus will issue to an inferior court to compel the performance of a certain and positive duty, made mandatory by law, or where the duty is simply ministerial and involves no judicial discretion, has been decided .and settled hi nearly every State of the Union, and in the Supreme Court of the United States, as well as the -courts of England. (Tap on Mandamus, 154; 7 Cranch, 589; New York Insurance Company v. Wilson, 8 Peters; 291; State of Ohio v. Todd, et al., 4 Hammond, 351; 2 Johns. Cases, 118; 5 Wend., 132; Commonwealth v. Justice of the Sessions, 9 Mass., 387; 5 Mass., 434; 6 Texas, 465.) But this right is expressly given by the Constitution of our State (Article 5, § 3), and fully provided for by our statutes (Paschal’s Digest, 1579), which enacts: “The said court, or any judge thereof, in vacation, may issue writs of habeas corpus, mandamus, and such other writs as may be necessary to enforce the jurisdiction of said court, and also to compel a judge of the District Court to proceed to trial and judgment in a case.” This statute, we think, settles the question as to the legality of the writ; and having herein determined the justice and necessity of the writ, as prayed for, we have now simply to order that a peremptory writ of mandamtis issue in accordance with the prayer of the relator, commanding the judge of the lower court to enter up a judgment, now for then, on the verdict of the jury, according to the terms and requirements of law.

Mandamus awarded.  