23 Cal. 40 | Cal. | 1863
delivered the opinion of the Court-Horton, J. concurring.
The claim of the intervenor is founded upon this state of facts: On the tenth day of April, 1858, Donner conveyed the undivided one-third of the premises to John Yontz; on the fifteenth day of
But Sec. 209 provides than an execution to enforce this lien can only issue within five years after the date of the judgment, and if the judgment creditor suffers that.time to elapse without having enforced Ms lien, he cannot procure an execution, smce the repeal of Sec. 214, with wMch to enforce it. So, too, all right of action upon the judgment is barred by the seventeenth section of the Statute of Limitations, unless commenced withrn five years of the date of its rendition. Whether a lien can exist in any county after the expiration of five years from the date of the judgment by filing a transcript in the Recorder’s office just within the two years, is a question not properly before us in this case; but it is clear that if a lien could exist in such case, it would be merely nommal, unless an execution is issued within the five years with wMch to enforce it.
It follows from these views that "the interest of Yontz was vested in the intervenor, and there was therefore no error M granting Mm a new trial. The order granting him such new trial is therefore affirmed.
One ground of the motion for a new trial made by the defendants was misconduct of the jury, the sole evidence of wMch was the affidavits of a portion of the jurors. The respondents contend that at common law, jurors could not give evidence impeacMng their own verdict, and that the amendment of Sec. 193, allowing affidavits of jurors to be used for that purpose, does not apply to this case, because it was not passed until after the rendition of the judgment. It is unnecessary to examine what the rule upon tMs subject may
The affidavit of one of the jurors, Day, after stating generally what occurred in the jury room, in the way of discussions and votes, states that after a time a vote unanimous for the plaintiff was taken, but immediately thereafter Heller and Fortune, who are charged with the misconduct, recanted, and said their vote was not according to then convictions; and soon after the affiant saw Fortune approach Heller, and heard him propose to the latter that he would place a piece of money, and the latter should guess, heads or tails, and if he guessed right then then verdict should be for the plaintiff, or they would go with the others for the plaintiff; that Heller assented; that Fortune then placed a piece of money and covered it so that the former could not see it; he guessed, and they announced that he had guessed right, and they thereupon agreed to a verdict for the plaintiff, but both said it was still contrary to their convictions. The affidavit of Calkin, another juror, is substantially to the same effect. The plaintiff introduced the affidavits of several other jurors, in rebuttal, who corroborate the general
That the conduct of these jurors was such as to vitiate the verdict there can be no doubt. The rule of law upon this subject is well settled. (1 Graham & Waterman on New Trials, 103; Wilson v. Berryman, 5 Cal. 44.) The Court therefore erred in denying the defendants’ motion for a new trial. Several other questions are raised by the parties, but as they do not relate to the merits of the case, and as their determination is not important to guide the future action of the Court below on the new trial, we do not deem it necessary to pass upon them.
The judgment, is reversed and a new trial ordered as to the defendants and the intervener.