Oliver v. Herron

COLEMAN, J. — The appeal is prosecuted- from the judgment of the trial court overruling amotion for anew trial. This is the only assignment of error. The bill of exceptions does not purport to set out all, or substantially all the evidence, before the court at the hearing of.the motion, and for this reason, if there were no other, we would be compelled to affirm the-judgment. We are of opinion, however, that upon the showing made, as contained in the record, the court did not, err. The only ground for the motion, worthy of consideration, is, that one of the jurors, who tried the case, was non compos. and that movants have not had a jury trial as guaranteed by the constitution. We will not undertake to consider the conflicting testimony on this point. It is enough to say that movants by legal testimony, have not clearly shown the incompetency of the juror during the trial, whatever may have been his subsequent condition. We rest our conclusion upon another principle. The right of jury trial is a personal right of which no person can be deprived against his will, but there is neither constitutional nor statutory provision which prohibits him from waiving his constitutional privilege- in civil actions. Movants had personal notice of the condition of the jur- or during the trial. If they intended to raise an objection to his competency or qualifications, it was their bounden duty to have done so at the time. Having concluded the case, in the face of such notice, and taken the ch anees of a verdict in their favor, they will be conclusively held to have waived the objection to the juror. Affirmed.