Duplex Printing Press Co. v. Journal Printing Co.

Tore, C. J:— That is not our practice. Immediately after the jury goes out is in ample time to note an exception. Verdict for plaintiff for $4000.00. Motions were made on behalf of defendant, for a new trial and in arrest of judgment. After argument, the court on March 30th, handed down the following decision, refusing said motions: Boyce, J:— The defendant, by its counsel, has moved for a new trial, and in arrest of judgment, because there was a change in the personel of the court during the progress of the trial. It admits that the court was, on the first day of the trial, a constitutional court, but contends that the addition to the court on the second day of another member thereto who thereafter participated in the trial at alternate times so changed the original court as to render the proceedings coram non judice. The learned counsel cites in support of his contention the following cases: People vs. Shaw, 63 N. Y., 36; Shaw vs. People, 3 Hun., 272 ; Oakley vs. Aspinwall, 3 Com. (N. Y.), 547; State vs. Crane, 36 N. J. L., 398; and these are all criminal cases except one. In the American and English Encyclopedia of Law, Vol. 12, page 11, it is said : “A judge of oyer and terminer absenting himself for a day in the course of a murder trial thereby disqualifies himself from further sitting. If he sits again, it is error ’ ’; and the above cases are cited in support of the text, which upon a careful perusal, we do not find applicable to the facts in the case now before us. In the case of Tuttle vs. People 36 N. Y., 431, it was held that a temporary absence from the bench of one of the judges, there being a regular quorum in attendance, does not break up the session or invalidate the proceedings. ‘ ‘A criminal proceeding is wholly in invitum and is not to be controlled by the doctrine of waiver which rests upon assent.” Hill vs. People, 16 Mich., 351. And because of the involuntary character of a criminal proceeding on the part of the defendant, the mode of trial as provided by the constitution and laws of the state must be fully complied with before the prisoner may be deprived of either his life or liberty. The state, because of its interest in the lives and liberties of its citizens, has provided the [579] tribunal by which the offender shall be tried. He may waive a trial and plead guilty to the indictment, but he will not be permitted when in jeopardy, as for murder or felony, to assent to a trial by any other tribunal, or to any other mode of trial than that established by law. And for a like reason he cannot waive irregularities in his trial. A different rule prevails with regard to trials in civil causes, because the parties to the suit may consent to a departure in the usual course of such trial, or may waive irregularities therein, either expressly or impliedly. ‘ ‘ Civil suits relate to and affect as to parties against whom they are brought, only individual control, and which they may part with at their pleasure. * * * Any departure from legal rules in the conduct of such suits, with the consent of the defendant, is, therefore, a voluntary relinquishment of what belongs to the defendant exclusively. ” Cancemi vs. People, 18 N. Y., 128. In the case of Durham vs. Hudson, 4 Ind., 501, notwithstanding the constitution of the state, provided that, “In all civil cases the right of trial by jury shall remain inviolate, it was held in a civil suit that a party might consent to a verdict by a jury of less than twelve men.” Such has frequently been the practice in the courts of this state by consent of parties. In the case of Oakley vs. Aspinwall, supra, being a civil case, Brownson, C. J., observed that something must be trusted to the judge’s discretion, whether he could safely leave for a while. The distinction between irregularities occurring in the proceedings in criminal cases—for murder and felony—and in civil actions, is that the proceedings in the former cases when invoked are wholly against an unwilling party and are not subject to the doctrine of waiver, while in the latter, the doctrine applies. This being a civil action, the proceedings therein were not coram non judice because of the participation of another judge at intervals as has been alleged. The jurisdiction of the court did not thereby become defective and void, but, at most, merely irregular. It was competent for the defendant to have objected at the time to any participation by the other member of the court after the trial had been proceeded with several hours by the two [580] judges, constituting a quorum, who were present throughout the trial; and having failed to avail himself of this right at the instant it became known that another member of the court was present and taking part in the trial, the defendant is deemed in law to have waived the right, and the objection now comes too late. For it is a well established rule that an objection not made at the trial at the proper time will -not be considered on appeal, but is deemed as waived; and for a like reason an objection not noted at the trial as above will not be heard in a motion for a new trial or in arrest of judgment. The doctrine is well expressed in Broom’s Legal Maxims, at star page 103, where it is said: * ‘ Where an irregularity has been committed, and where the opposite party knows of the irregularity, it is a fixed rule, observed as well by the courts of equity as of common law, that he should come in the first instance to avail himself of it, and not allow the other party to proceed to incur expense. It is not reasonable afterwards to allow the party to complain of that irregularity, of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary; and, therefore, if a party after such an irregularity has taken place consents to a proceeding which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity. ” Regarding, as we do, the objection raised to the participation in the trial of one of the judges as an objection made to a mere irregularity, if it may be so called, in the conduct of the trial which in no way affects either the merits of the case or the jurisdiction of the court before which it was tried, we are not warranted in granting a new trial or in arresting the judgment on that ground. And as to the other reasons assigned by the learned counsel in his motion for a new trial relating to the finding of the jury from the evidence under the charge of the court, we are obliged to say that, after a most careful consideration of the several matters submitted to us, we are not justified in granting a new trial for those reasons. The motions for a new trial and in arrest of judgment are, therefore, dismissed, with costs.