53 Ind. 81 | Ind. | 1876
This suit was brought by the appellee, Samuel P. Langdon, against the appellants, Wallace Hight and Emily Hight, his wife, on a note given by Wallace Hight, and to foreclose a mortgage on real estate given by both the appellants to secure the payment of the note.
Proper issues were formed, trial by jury, verdict, judgment and decree of foreclosure rendered. It is proper to say that the proceedings were had in 1874, that the action of
On the fifteenth day of the term, this case was called for trial, and the defendants, appellants, asked and demanded that the case should be tried by the original and regular jury, and objected to being tried by the new jury. This demand and objection was overruled, and the legality of this ruling is properly before us.
The law authorizes the court, on the first day of the term, to set aside a jury, where one of the officers who acts in its drawing has a suit pending in the court at the time, on proof thereof. 2 G. & H. 30, sec. 1.
This motion, proof and order to set aside the original jury, not having been made on the first day of the term, we hold was too late, and that the appellants were not bound to go to trial before the newly summoned jury. Without this provision, the court would have no right to set aside the jury and call another for this cause; and we think, therefore, it must and can only be done within the time prescribed by the law.
The judgment is reversed, at the costs of the appellee, with instruction to grant the appellants a new trial.
Buskirk, J., was absent.
