Vincent v. Smith

CAMPBELL, J. One of the jurors in this case was upon the bond for costs of the plaintiff, and therefore subject to challenge. Rev. Stats. 1901, par. 2823. The affidavit of appellant, defendant below, filed with his motion for a new trial, states that the juror was returned upon the venire of jurors as J. P. Richards, while the bond was signed John T. Richards, and affiant had no knowledge that the juror and bondsman was the same person. The examination of the juror upon his voir dire is not before us, the reporter’s transcript having, on motion, been stricken, because of failure to comply with the provisions of the statute, which enables a party to make such transcript a part of the record on appeal. We must assume that the juror answered fully and fairly such questions as were put to him upon his voir dire, and, indeed, it is not contended by appellant that he did not do so. The rule is that where opportunity has been had to examine a juror as to his qualifications, and the juror has not concealed his disqualification by misleading or false answers, the subsequent discovery of the disqualification does not warrant the court in setting aside the verdict. Failure to interrogate and challenge the juror waives the disqualification. Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432; Raub v. Carpenter, 187 U. S. 159, 23 Sup. Ct. 72, 47 L. Ed. 119; Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258; 24 Cyc. 318, 319, and cases cited. Nor is the party relieved from the exercise of diligence by reason of the fact that the juror’s [348] name was not correctly put upon the jury list. Morse v. Montana Ore-Purchasing Co. (C. C.), 105 Fed. 337. Upon the record as presented to us, we find no error, and therefore affirm the judgment of the district court. KENT, C. J., and DOAN and LEWIS, JJ., concur.