| N.D. | Nov 1, 1919
Lead Opinion
Plaintiff brought this action to recover of the defendant the value of thirty-four turkeys which he alleges that the defendant unlawfully seized and converted to his own use on or about July 1, 1918. The defendant interposed a general denial to plaintiff’s complaint. Hpon the issues thus framed the case was tried
Some of the assignments of error are predicated upon matters connected with the default judgment and the motion to vacate it. It is contended that the evidence which formed the basis for the default judgment was mostly hearsay, that it was insufficient to support the judgment, and that the damages allowed in the default judgment were excessive.
Manifestly we are not concerned with the default judgment. That was set aside upon defendant’s application. It is entirely immaterial whether there was any evidence to support it or not. • The judgment before us on this appeal is based upon the verdict of a jury; that verdict was returned upon a trial where defendant and his counsel were present and were afforded full opportunity to be heard.
It is further contended that at the time application to vacate the default judgment was made, the trial court made some remarks with respect to the testimony that had been adduced at the time the default judgment was ordered. It is claimed that the trial court at that timé, in the presence of some of the jurors, stated that the matter was one which the state’s attorney ought to investigate, and that there was enough evidence (taken at the time the default judgment was ordered) to send the defendant to the penitentiary.
It is a sufficient answer to this contention to say that it appears that whatever remarks the trial court made were made directly to defendant’s counsel. Such counsel afterwards examined the jurors. He did not even find it necessary to exhaust his peremptory challenges ; and so far as the record shows no objection was made to either the trial judge or the members of the jury. Apparently both the trial court and jury were satisfactory at that time, and it was only after an adverse decision had been rendered that they became unsatisfactory.
Error is also assigned upon rulings made in the admission and exclusion of evidence. The assignments have all been examined and considered, and found to be without merit.
It is also asserted that the verdict is not supported by a prepon
Other assignments of error are based upon the court’s instructions to the jury upon the subject of punitive damages. The assignments are wholly without merit,' as the jury allowed compensatory damages only and refused to allow punitive damages.
In support of the motion for a new trial defendant submitted certain written statements of some of the members of the trial jury to the effect that they did not at the time the verdict was rendered believe that defendant had taken and converted the turkeys; that they believe the verdict to be unjust; that certain members of the jury were prejudiced against the defendant, and that the verdict was a compromise. The statements are unverified. It is not claimed that the verdict was a “chance” verdict. The statements are denied by the affidavits of the foremen of the jury and one of the jurors. That a verdict cannot be impeached or discredited by the testimony of the jurors is so well settled that discussion is unnecessary. Anyone interested will find the subject fully considered in Spelling’s New Trial & Appellate Practice, § 409.
The defendant also asked for a new trial on the ground of newly discovered evidence. The newly discovered evidence is the proposed testimony of the defendant and his two principal witnesses upon the former trial with respect to certain marks of identification upon the turkeys in controversy. The granting or refusing of a new trial on the ground of newly discovered evidence is a matter which rests within the sound, judicial discretion of the trial court. We are wholly agreed not only that there was no abuse of discretion, but that the ruling was right and proper.
The judgment and order appealed from must be affirmed. It is so ordered.
Concurrence Opinion
I concur in the result.