46 Neb. 575 | Neb. | 1895
This action originated before John Thomas, a justice of the peace of Sarpy county, and was afterwards transferred to W. A. Wooley, another justice of the peace. A judgment having been rendered in favor of the plaintiff by the justice of the peace last named, the defendant prosecuted error proceedings to the district court, wherein the judgment which had been rendered by the justice of the peace was reversed. In the petition in error upon which this reversal was had the grounds upon which the reversal was sought were stated in this language: •
*576 “First — Five jurors were sworn to try the said cause, and sat upon the trial thereof, but no verdict was rendered by said jury; but three members of the said jury were present in open court at the rendition of such alleged verdict purporting to be the verdict of the original jury sworn to try the cause,
“Second — After the jury were sworn to try the.cause, the plaintiff, by his attorney, moved the court to strike the second part or division of the defendant’s bill of particulars, the same filed as an offset for rental of twenty acres of land at three dollars per acre, with interest from the 23d day of January, 1891, and due December 1, 1891; and said motion 'was sustained by said justice and the defendant’s set-off was stricken, against defendant’s objection.”
The transcript of the justice of the peace showed a return of a verdict by the jury. It also showed that one juror, by agreement, had been excused. No question is raised as to this particular juror, but it is insisted that there were present when the verdict was returned but four jurors. The transcript, however, only shows that, when the verdict was returned, the jury was asked if it was their verdict and four jurors responded in the affirmative. By affidavit an attempt was made to show that one juror in fact was not present, but the record discloses no objection made to receiving the verdict when it was returned, neither does it seem that the alleged irregularity, existed or was urged at all until it was presented for consideration in the district court. This was too late. (Wasson v. Palmer, 13 Neb., 377; Scott v. Waldich, 12 Neb., 5.) The above quotation from the averments of the petition in error, passed upon in the district court, sufficiently describes the counterclaim as it appears elsewhere in the record; but the transcript considered in the district court, which is certified to this court, begins with a recitation of the receipt by Mr. Wooley, as a justice of the peace, of a transcript of the docket of Mr. Thomas, another justice of the peace, and of
Affirmed.
