109 P. 130 | Or. | 1910
delivered the opinion of the court.
Among the causes of challenge for implied bias, enumerated in Section 122, B. & C. Comp., is the following: “Interest on the part of the juror in the event of the action, or the principal question involved therein.” Under our statute the appeal from the assessment of damages is taken from the decision of the court upon the report of the viewers and not from the order establishing the road. Therefore the court, at any time after approving the report and fixing the assessment of damages, may order the road established, notwithstanding the appeal. In the case at bar the court on May 24, 1909, approved the report and assessment of damages, made an order requiring the petitioners to pay the same on or before the next regular term, as a condition precedent to a final order allowing the petition, directed that further proceedings be stayed pending such payment, and continued the matter until the following term, which was held in July, 1909. On the day succeeding this order, the plaintiff appealed to the circuit court from the assessment of damages, and on the 13th day of November, 1909, the cause was tried in that court.
“This cause can be tried nowhere but in the county of Bibb, where all the defendants reside, and, if not tried there, it cannot be tried at all. If citizens of Bibb are incompetent to try it, then it follows that the administration of the law utterly fails, and the state cannot compel the collector to pay over the public money in his hands. * * Our judgment is that in cases against tax collectors, where the interest of the jury is remote, slight and uncertain, and when their exclusion would defeat altogether the enforcement of the law against them, that the citizens of the county are not disqualified, as jurors, because of that interest.”
In Wilson v. Wapello County, 129 Iowa 77 (105 N. W. 363), the court, after saying that in cases against municipal corporations it had always held that taxpayers of such corporations were ineligible as jurors, continues:
“It is sufficient to remark in this connection that jurors are drawn from the county at large, and where a city, town, or other minor municipality is proceeded against, no substantial injustice could result from a trial to a jury made up of nontaxpaying members of the panel. Moreover, no such difficulty need be apprehended in such cases, as challenges on the ground of interest, if sustained, could not have the effect of blocking the machinery of the court, and thus make it impossible that a case be put upon trial. When, however, a county is proceeded against, the court is confronted with quite a different situation. While there is no requirement in the statute that one must be a taxpayer to be eligible as a juror, yet it is fair to presume that each person drawn for jury service is the owner of some property, greater or less*242 in amount of value, which is the subject of taxation. Indeed, we think it within common experience in this state that the appearance of a nontaxpaying juror furnishes a rare exception to the rule. And it is hardly conceivable that a panel should be drawn in any county presenting a sufficient number of nontaxpaying members to make it possible to make up a jury out of such for the trial of a case. It may be true enough that, after exhausting the regular panel, the drawing of talesmen might be resorted to and continued indefinitely until a sufficient number of jurors who could pass challenge should be found. Conceding the possibility of such a course, and to say nothing of the expense incident thereto, we should be very slow to condemn the discretionary action of a trial court in refusing to compel parties to submit their important matters of difference to a jury which might be eventually thus made up. And this conclusion is the more readily reached in view of the statute which gives a plaintiff who has brought an action triable to a jury against a county, in a court of that county, as he must, the unqualified right to have the place of trial changed to an adjoining county.”
“And that the whole damage that will be caused by the opening and establishment of said proposed road, including the value of the land taken, the effect of the taking upon the remainder, the cost of construction and maintenance of necessary fences, and other inconveniences and burdens it will impose, will amount to not less than $1,000.”
The affidavit was admitted so far as it related to the expense of construction of new fences, the inconvenience of passing from one part of the tract to the other, and carrying on farming and stock-raising operations. We think this error, as far as it was admissible under the authorities. It has been held in this state that a witness will not be allowed to state upon a question of general damages the amount of such damages ; that is, he will be confined to the testimony as to conditions, leaving the jury to estimate amounts: Burton v. Severance, 22 Or. 91 (29 Pac. 200) ; U. S. v. McCann, 40 Or. 13 (66 Pac. 274). But this court seems to have held, in cases of this character, that a witness, otherwise competent, may testify directly as to the amount of damages: Blagen v.
The judgment of the circuit court is affirmed.
Affirmed.