159 Ga. 264 | Ga. | 1924
The defendants in error, George F. Clark, J. F. Monk, and Mrs. Rachel M. Monk, filed their petition to the court of ordinary of Colquitt County, to probate in solemn form the last will and testament of R. G. Clark. To this application the plaintiffs in error, Mrs. Cynthia McLendon and Henry Clark, filed their
Counsel for plaintiffs in error insist that there is a ground for not considering the counter-showing made by the respondents in the present case, additional to the reasons urged in the DuPre case; and that is, that the answer of the respondents in the motion for
The counter-showing as made by the respondents in their answer and accompanying affidavits authorized the court hearing the motion for a new trial to find and to hold that the movants were, estopped from setting up and insisting on the relationship of the juror to the prevailing party. As shown by the answer, which showing is supported by the affidavits submitted, the following occured while the jury was being obtained. “When said case was called for trial at the April term of the court, Mr. Dowling as one of counsel for the propounders, and Mr. Hill as one of counsel for the caveators, knew, or believed that they knew, all jurors upon the list furnished them who were disqualified from relationship, and then and there designated such disqualified jurors, and each juror so designated was by mutual consent excused and other jurors substituted in their' places. ■ While the list of jurors was being so purged and perfected, Mr. Dowling, of counsel for the propounders, suggested to the court that because of a bequest in said will to the First Baptist Church of Moultrie all members of that church might be disqualified; and thereupon Mr. Hill, of counsel for the caveators, stated in his place that such disqualification, if it were a disqualification, was waived by the caveators. Mr. Dowling again arose in his place, as one of counsel for the propounders, and was proceeding to state to 'the court other possible grounds of disqualification, but was interrupted in the course of such statement by Mr. Hill, who rose in his place as counsel for the caveators, saying: ‘We waive all other disqualifications, if there are any others, and agree to strike from this list/ or words of that exact purport and effect, to which proposition Mr. Dowling then and there assented, and refrained from stating to the court other possible grounds of disqualification or causing further inquiry into possible grounds of disqualification of the jurors whose names then and there appeared upon the list of twenty-four as furnished by the clerk to counsel for both sides. From the list of twenty-four jurors so furnished and agreed to, counsel for each side struck
We do not think that the movants were in a position, after having made the waiver shown above, which the court was well authorized to find prevented further steps upon the part of the propounders to purge the jury, to insist upon relationship. It is further shown by the answer that the juror John Key, claimed by the movants to be a third cousin to one of the propounders and therefore disqualified, would have informed the court that he was possibly related to the propounder, J. F. Monk, and would have caused an investigation of the matter, though he was not sure of the existence of such a relationship; and this showing in the answer is sustained by the affidavit of John Key himself. Under the facts as shown in the record, as we have said above, we do not think the movants are in a position to insist upon the disqualification of the juror as a ground for setting aside the verdict.
Judgment affirmed.