101 Cal. 511 | Cal. | 1894
This case has previously been before the court. (See 98 Cal. 384.) At that time the appeal
Section 657, subdivision 2, of the Code of Civil Procedure provides substantially that whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them, by the court, by a resort to the determination of chance, such fact may be proven by the affidavits of jurors. In the present case one Hosier made affidavit that the verdict was arrived at by resorting to the determination of chance, and that he was induced to assent thereto in that manner. It is now insisted that his affidavit must be taken as true, as far as his.own conduct is concerned, and that he being so induced to assent the verdict must be set aside. Hester’s affidavit appears to consist of two portions: 1. The verdict was a chance verdict; 2. He was induced to consent to it by reason of that fact. But the rock upon which his contention is shattered is located in the finding of the court that the verdict was not a chance verdict. If it was not a chance verdict he could not have been induced to assent to i't for the reason that it was such a verdict; and the second portion of his affidavit, ex necessitate falls with the first. As is said in
For the foregoing reasons it is ordered that the judgment and order be affirmed.
De Haven, J., Paterson, J., Harrison, J., McFarland, J., and Fitzgerald, J., concurred.