Soper v. Medberry

The opinion of the court was delivered by Valentine, J.: This was an application by petition for a new trial. The court below granted the new trial and the adverse parties now. (as plaintiffs in error) bring the case to this court, asking for a reversal of the ruling, order and judgment of the court below granting a new trial. The trial in the original case was had and the proper judgment rendered therein at the December term of the district court, (December 12, 1872,) and the petition for the new trial was filed March 29, 1877.' The only ground set forth for the new trial was, that the petitioners did not have a fair and impartial trial, at the original trial, on account of bias and prejudice on the part of the jury that tried the cause. The petitioners (who are now the defendants in error) have not pointed out specifically the clause or clauses of the statutes upon which they found their claim for a new trial, but they seem however to make the claim upon general principles and ■“for causes enumerated in § 306 of the code,” and they also [133] refer to §568 of the code. (Comp. Laws of 1879, pp.641, 679.) The petitioners also set forth in their petition the following excuses for their very long delay (over four years) in filing their said petition asking for a new trial. 1. They had no knowledge-of said prejudice on the part of the jury until February 7,1877, when for the first time they were informed of such prejudice. 2. Some time after the original trial was had, and after the original judgment was rendered, they took the case to the supreme court, where said judgment was finally affirmed, (Medberry v. Soper, 17 Kas. 369 to 378,) and the cause was remanded to the district court, where, as they claim, the final judgment was finally rendered against them in the case in February, 1877. Now, we do not think that the petitioners are entitled to a new trial upon general principles, nor under any statute, unless it be under some one or more of the provisions of subdivisions 1, 2 and 3 of § 306 of the Civil Code. If they are entitled to a new trial at all, it must be because of some “irregularity in the proceedings of the . . . jury,” or “misconduct'of the jury,” or “'accident or surprise which ordinary prudence could not have guarded against.” They have sét forth nothing else in their petition for which a new trial could be granted. But why did not the petitioners know of said prejudice at or before the original trial, or within some reasonable time afterward? It would not seem that they exercised much, if any diligence to ascertain such alleged prejudice, or to know whether said jurors were fair and impartial, or not. It would indeed seem from the affidavits of the petitioners that some sort of an examination of the jurors was had at the time the jury was impaneled, but what kind of an examination was had is not shown. What questions were asked, or what answers were given, we do not know. F. M. Shaw and C. A. Leighton were the principal petitioners, and are now the principal defendants in error. There is no claim that any of the parties other than Shaw and Leighton were, or are entitled to a new trial. Shaw and Leighton were bank [134] ers; and it is alleged in the petition that said prejudice arose principally in connection with their business affairs as bankers. And the petition further alleges that “ Shaw & Leighton were constantly occupied in attending to said necessary and legitimate affairs, taking no thought or care as to whether prejudice existed in the minds of any as to their occupation or mode of business that might operate to their injury or prejudice in this action, or in any other respect.” This allegation is set forth as an excuse for not knowing of said prejudice prior to February 7,1877, although the trial was had in December, 1872. We do not think tha,t there were facts sufficient alleged in said petition, or proved, to show prejudice on the part of the jury as a body. There was evidence tending to prove that one, and possibly two or three of the jurors, were prejudiced. As to what was done by the jury after it was impanneled, except to hear and determine the case and to determine the case against the petitioners, we are left almost wholly in the dark. Certainly no very great misconduct was shown. One juror took notes of the evidence, which he had in the jury room. Another juror was shown to have been prejudiced -against the petitioners, and he, or some other juror, said in the jury room, “Damn Shaw.” And this is about all we know upon the subject. For the purposes of this, case, however, we shall consider that the jurors were prejudiced against the petitioners. Whether the petitioners’ counsel knew of this prejudice, or not, at the time the jury was impanneled, we are not informed. We are only informed that the petitioners themselves did not know it. With regard to prejudice of jurors, and the duty of parties and counsel to ascertain the same, see authorities cited by counsel for plaintiffs in error. For the purposes of this case we shall consider that the court below might have granted a new trial to the petitioners upon the grounds set forth in their petition, if the application for the new trial had been made in proper time. ' But was the application made within proper time? The law requires that the application should be made within one year [135] after the final judgment is rendered. Section 310 of the civil code provides that “ where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by petition filed as in other cases, not later than the second term after discovery; . . . but no such petition shall be filed more than one year after the final judgment.” (Comp. Laws of 1879, p. 642.) Now in this case the petition was not filed for more than four years after the final judgment was rendered. The judgment was rendered in the district court on Dec. 12,1872, and it was allowed to stand for over one year, for more than two years and for a large portion of the third year, before any attempt was made to take the case to the supreme court; when, on July 14, 1875, the case was finally taken to the supreme court. Whether a bond was then given and the judgment of the district court stayed or not, is not shown. On January 2d, 1877, the case was decided by the supreme court, and the judgment of the district court was affirmed. The judgment of the district court was never disturbed in any manner or particular, but it was allowed to remain final, and just such a final judgment as is contemplated by said § 310 of the civil code. The mere taking of a case to the supreme court does not in any case destroy the judgment previously rendered therein; nor does it even suspend the operation of such judgment, unless a bond is also given for such purpose; and if the judgment is affirmed, no new judgment is rendered, but the old judgment originally rendered remains intact, in full force and effect, and final. The principal question before the supreme court when a case is brought before it on petition in error is, whether the judgment originally rendered in the case shall remain final, or whether it shall be reversed, vacated or modified; and where the supreme court affirms the judgment, it determines that the judgment shall remain final. The judgment in this case remained a final judgment for more than one year, and even for more than two years, before [136] the case was taken to the supreme court; and it remained a final judgment for more than one year while the case was pending in the supreme court. It remained a final judgment for more than four years, altogether, before the said petition (this application) for a new trial was filed. We do not think that the petitioners filed their petition for a new trial in time, and therefore the judgment and order of the district court granting a new trial on such petition must be reversed. All the Justices concurring.