Wells-Stone Mercantile Co. v. Bowman

Buck, J. About noon of the second day of the trial of this action in District Court the defendant for the first time became [367] aware of the fact that a juryman named Dwyer was a brother-in-law of one F. A. Clarkson, who was the general manager and a stockholder of the plaintiff corporation. The defendant, upon making such discovery, forthwith called the attention of the court to such fact, and moved for a continuance of the action, which motion wras denied by the court, and duly excepted to by the defendant. There is no record or settled case showing the proceedings which took place upon this question before the trial court, except the affidavits on the part of the defendants, and we only make the brief statement here from an examination of the defendant’s affidavits as the foundation for what we say hereafter, because, if we do assume such facts to be true, our doing so cannot in any way operate to the injury of the plaintiff. When the defendant discovered the relationship which existed between the juror Dwyer and Clark-son he should have asked for the discharge of the whole jury, and asked that another one be impaneled, instead of moving the court to continue the case. By omitting to do this he was guilty of negligence or laches which precludes' him from availing himself of the disqualification of a juror as a ground for a new trial. It is the duty of a party, when he discovers the disqualification of a juror during the trial, to make the objection in the appropriate way at the earliest practicable moment. He cannot be allowed to speculate on the verdict, and afterwards move for a new trial if the result is unfavorable to him. He should have presented to the court sufficient proof of the relationship existing between these parties, unless the same was admitted by the plaintiff. It does not appear by the settled case or by the affidavits that this was done, and the court was right in refusing to continue the case, for it would greatly impede the due administration of justice in our judicial proceedings if a party could, every time that the incompetency of a juror was discovered, procure the continuance of the action upon such grounds. As this disposes of the case, we need not discuss any other questions raised, for they are not material. The order denying a motion for a new trial is affirmed. Gilfillan, G. J., absent on account of sickness, took no part. (Opinion published 61 N. W. 135.)