91 P. 52 | Kan. | 1907
The opinion of the court was delivered by
It is claimed that the court erred in refusing to strike from the files the affidavits and in admitting oral evidence in support of the motion. This claim of error is based upon the contention that the “misconduct of the prevailing party,” which is one of the statutory grounds for a new trial, has no application to any acts of a party except such as occur at the trial, and especially that it has no reference to something that may have occurred long prior to the trial. To this we cannot agree. The language of the statute contains no such restrictions. Nor is there any substantial reason why the acts of a party which were designed to and did operate at the trial to secure to him an undue advantage, by means which the law regards as reprehensible, should not furnish grounds for setting aside the verdict merely because they were set in motion before the trial. In May, Weil & Co. v. Ham, 10 Kan. 598, the syllabus reads:
“Where it is shown, on a motion for a new trial, that the prevailing party in the cause prior to the commencement of the trial attempted to pack the'jury, the verdict should be set aside for such misconduct, unless it should also appear, clearly and beyond all reasonable doubt, that the other party was not prejudiced by such conduct.
“And where such misconduct was discovered by the other party during the trial it is sufficient for such party to raise any question connected therewith, after verdict, on a motion for a new trial.”
The statute makes misconduct of the prevailing party a ground for a new trial,. provided the substantial rights of the complaining party have been materially affected. This does not require an affirmative showing that but for the misconduct the verdict would have
Both parties have equally the right to a fair and impartial trial, which includes the right to have the jury drawn without one party having exercised a choice or selection of the men who shall serve thereon, except as provided by law, when the jurors are examined upon their voir dire. Where one of the parties unlawfully secures the selection of certain men for the regular panel, and prevents certain others from being drawn who were regularly chosen for jury service, it can hardly be seriously contended that the rights of the other party have not been materially affected thereby. In May, Weil & Co. v. Ham, supra, it was said, in the opinion:
“It may also be that the seeming misconduct of the plaintiffs did not affect the verdict of the jury; but it may be that it did,' and we cannot say that we feel clear that it did not, and this is all that is necessary to require a reversal of the judgment. When a party has committed a flagitious act in order to obtain some undue advantage over his adversary, as it would seem one of the plaintiffs in this .case did, such party should not ask that the other parties should show that they were in fact prejudiced by his-acts. On the contrary, he should be compelled to show clearly and beyond all reasonable doubt, if not beyond all doubt, that such parties were not prejudiced by his unwarranted and reprehensible misconduct.” (Page 601.)
It is seriously urged that the objections to the manner in which the jury were drawn amounts to a challenge to the array and comes too late. It is doubtless true that the irregularities could have been shown in support of such a challenge, and the proof would have warranted the court in quashing the panel, but that fact does not in any sense give character to a showing made, not for the purpose of quashing the panel, but for the purpose of setting aside a verdict and obtaining a new trial. If the charges set forth ip the motion were true, plaintiff in error might have been prose
Another contention is that what plaintiff in error chooses to call “irregularities” and “informalities” were waived because the objections were not taken sooner; that by ordinary diligence the objections to the manner in which the jury were drawn could have been made before the trial. It is a sufficient answer that defendants in error, according to the evidence, had no notice or knowledge of the facts relied upon until after the trial. Besides, they were certainly not bound to assume that a county officer who happened to be a party to the action might falsify the records and tamper with the jury-box. And it is a misuse of the English language to characterize the acts charged against plaintiff in error as mere “irregularities” and “informalities.” .
It is true, as contended, that there was no direct evidence that plaintiff in error was responsible for the alterations in the lists of jurors or had tampered with the jury-box. But we do not agree with the claim that there was no evidence which tended to show a motive on his part to secure an unfair and unlawful advantage. On the contrary, there was direct evidence showing a disposition to obtain an unfair advantage with the jury and showing an attempt to influence some who might be called to serve on the case, and direct evidence of an attempt to conceal and distort the facts with respect to the jury-lists after an investigation had begun. The jury-box and the jury-lists were in his official custody, and were undoubtedly altered and tampered with; and, while no witness testified to seeing him in the act of making the alterations or changes, the circumstances in evidence were very suspicious, and beyond any question, in our opinion, were sufficient to require the court to set aside the verdict and order a new trial. This is especially true in view of the failure
It is finally insisted that the reason assigned by the trial court for allowing the motion amounts to a finding that the charges of misconduct were not established by the evidence, and that a new trial was in fact granted upon grounds not included either in the motion or provided for in the statute. The remarks of the court were as follow:
“I have no criticism to make upon any one connected with this case, nor am I going into the question of the manner in which certain names got into that jury-box, but I want to say this: that there is a suspicion caused by the manner of drawing that jury which should not exist in any court on earth.
“It is possible that the instructions of the court were not clear enough. It is barely possible that the jury did not weigh and consider the evidence as they should have done; but I have no criticism to make upon the jury. They did as they thought was right; but, on account of the suspicion that is raised that the plaintiffs did not have a fair and impartial trial, and the jury were not fairly drawn, I am of the opinion that a new trial should be had, and that the judgment should be set aside and a new trial ordered.”
In the light of the uncontradicted evidence we cannot regard the language of the court as a finding that the charges were not established, but are rather inclined to view the language used as showing a disposition on the part of the trial judge to avoid unnecessary harshness in characterizing what appeared to be reprehensible conduct by one of the parties. .
Courts are created to secure , the administration of justice between contending parties; and where, after
The judgment is affirmed.
