1 Minn. 347 | Minn. | 1857
By the Coxwt
This action was brought by the Defendant in Error to recover the amount due upon a promissory note. The cause was tried before a jury of twelve men, and a verdict returned for the Defendant in Error. The errors alleged are in regard to the' jury that tried the cause, —first, to the array: and second, to an individual juror. The objections were not made until after the jury had returned a verdict. The substance of the first objection is, that there were only twelve jurors returned at the opening of the Court, for the term, on the original venire, and that they had been discharged at the time this cause was tried.
The jurors who tried this cause were returned upon a special venire, which was issued by order of the Court. The following provision of statute would seem to furnish sufficient authority for issuing a special venire: “ It shall be lawful for “ the Judge of the District Court of' either of the counties of “ this Territory, when there shall happen to be a deficiency of “ jurors for a/rvy ecmse whatever, to rule a special venire, through “ the term or any days of the term, to the sheriff of the proper “ county to summon a number of jurors sufficient to complete “ the number of the original panel.” Rev. Stat. see. 32, p. 289.
It is contended that inasmuch as none of the original panel remained, this section of the Revised Statutes does not apply to this case; but I think the power exists, although, for obvious reasons, it should bet exercised with great caution. Parties should, if possible, whenever they require it, be tried by a jury selected in the maimer pointed out by the law for the selection of the original panel. But it often happens, — and
It is, however, unnecessary to inquire how far the authority of the Court extends in such cases when objection is seasonably made, because in the one before us none was made till after the return of the verdict of the jury. This was too late. In the absence of fraud or collusion in the selection of a jury, an objection to the array, or to a single juror, is too late after the verdict: unless it is shown that the party objecting was prejudiced by the irregularity. In other words, an objection which is merely technical in its character must be talen before the coming in of the verdict of the jury. Walker vs. Green, 3 Green. R. 215; Fellows’ Case, 5th Green. R. 333; Amherst vs. Hadley, 1 Pick. R. 38; Howland vs. Gifford, 1 Pick. R. 43; 6 Cowen, 584; 6 Wendell R. 389.
The objection to one of the jurors that tried the cause (Joseph Lindsley) was good if it had been made in season. He had not resided in the Territory six months. But no suggestion is made that his selection grew out of any wrong intention, or that the Plaintiff in Error is injured by it. He must, therefore, abide^by the result. To adopt a different rule would place verdicts upon ajoundation so precarious that parties would never know when they were to approach the end of a lawsuit. It would always give the defeated party additional, trials, so long as he could find technical defects in the drawing, summoning or qualifications of jurors. This cannot be supported by sound reasoning, and is opposed to the interests of the people and the policy of the law.
Judgment below affirmed.
