54 Neb. 138 | Neb. | 1898
In tlie district court of Plielps c.ounty, in an action at law for damages, George Kellogg recovered a judgment against the Chicago, Burlington & Quincy Railroad Company. After tlie adjournment of the term of court at wliicli such judgment was rendered the railway company brought this suit for a new trial of the law action. The court.entered a judgment dismissing the action, and the railway company has filed fiere a petition in error to review this judgment.
1. The Hon. F. B. Beall was the judge who presided at tlie trial of the law case, and. he also presided at the trial of the case at bar. When this case came on for trial counsel for tlie railway company objected to Judge Beall hearing it, claiming that he was interested and therefore disqualified from hearing, this case. The railway company's objections were overruled and Judge Beall heard and determined the case at bar; and this action is the first
2. Before the court entered upon the trial of this action the railway company moved the court to sequester the witnesses by having them removed to some place where the unexamined witnesses could not hear the testimony of those who were on the stand. The overruling of this motion is the second assignment of error here. The practice is not regulated by statute in this state, except’to the extent that magistrates hearing the preliminary examination of one charged with a criminal offense are by the statute invested with discretion to sequester the witnesses. (Criminal Code, sec. 301.) It was held in Watts v. Holland, 56 Tex. 54, that a party litigant had the right to cause the unexamined witness to be sequestered during the trial, and that the refusal of the court to make such an order on request was reversible error. In Southey v. Nash, 7 Car. & P. [Eng.] 632, Baron Alderson said
3. The third argument is that the finding of the district court on which it based its judgment dismissing this action is not sustained by sufficient evidence. The petition alleged that after the jury trying the law case had been deliberating eighteen hours upon a verdict, the presiding judge, without the knowledge or consent of the railway company, instructed the deputy sheriff, who had the jury in charge, to say to them that he, the judge, was going home that afternoon and would adjourn court before going, and if the jury did not agree before he went home it would have to be locked up for probably a week; that the deputy sheriff communicated this statement of the presiding judge to the jury, and that the jury, for fear of being locked up for a great length of time, very soon thereafter agreed upon a verdict of $9,000, upon which
Affirmed.