Plаintiff filed a bill of complaint in the circuit court for Lenawee county on March 11, 1958, seeking to set аside a condemnation award originally made in a law proceeding instituted in the Lenawee сounty circuit'court on September 6, 1955, and subsequently tried on October
4
and 5, 1955. On the latter date the cоndemnation .jury made its award. Motion for new trial was shortly thereafter filed and followed by an amendеd motion for a new trial. On denial of these motions an appeal was taken to the Michigan Suрreme Court. On June 28, 1956, this Court'filed its opinion affirming the condemnation award. This opinion is reported in
In the present action plaintiff alleges that because of the interest, prejudice and bias of thе jurors, and because of the peculiar method of selection, which interest, prejudice and bias first came to his attention after the time had expired for filing a petition for a rehearing in the Michigan Supreme Court, he was.deprived of his land without due process as is required by the United States Constitution,. Fifth and Fourteenth Amendments, and the Michigan Constitution (1908), art 2, §16; that he was deprived of his land in a manner not сontemplated by article-13, §§ 1, 2, of the Michigan Constitution (1908) because the jury of 12 freeholders residing in the vicinity of such property was biased, prejudiced and chosen in a manner which was fraudulent and that ■ the fraud was perpetrated upon him; that the bias, *623 interest and prejudice of these 12 freeholders, who acted not only as jurors hut also as judges of the law, were not known to him at the time of the commencement of the condemnation trial, at the time counsel filed a motion for new trial, or аt the time the oral and written arguments were submitted to the Michigan Supreme Court, but were discovered by him subsequent to that time.
The school district filed its motion to dismiss the bill of complaint on April 19, 1958.
Defendant allegеs Blissfield is a community of approximately 2,800 people, and Strech, except for the period of time in service and while working in Detroit, was born, reared, educated and lived in the village. The fаcts claimed to be fraudulent would certainly be common knowledge to residents of this small village. If not, normal diligence in the preparation of trial would have disclosed them to Strech.
After orаl and written arguments, on November 14, 1958, the circuit judge filed a written opinion granting the motion to dismiss. On December 29, 1958, the decree for the school district was filed. From this decree, plaintiff appeals.
The opinion of the lower court indicates that the circuit judge made an extensive study of the allegаtions in the bill of complaint and the law applicable thereto. We think he reached the right сonclusion.
No questions are raised by the bill of complaint with respect to the bias, prejudicе and disqualification of the jurors or errors in selecting the jurors that were not raised or passed uрon by this Court or should have been raised or passed upon by this Court in the previous case.
lies judicata
apрlies not only to issues which were determined on their merits but also to matters which the parties had an оpportunity to present for adjudication on the merits.
Porth
v.
Cadillac Motor Car Co.,
. Plaintiff attempts to rely upon the allegаtion that he has been defrauded. He seeks to set aside the' previous award. No facts supporting such an allegation are found in the bill of complaint. The facts alleged, taken as true, dо not constitute fraud. Fraud is not to be presumed.
The only questions that need consideration are' the questions regarding the constitutionality of the-condemnation statute. Plaintiff alleges lack of cоnstitutionality in the statutes because no peremptory challenges are permitted, and the challenges for cause are limited by CL 1948, § 602.139 (Stat Ann 1957 Cum Supp § 27.264). Standards as to disqualifications for cause are set up in the statute sufficiently to justify determination as to whether a. proposed juror is in a positiоn to enter a fair and just verdict. These meet all the requirements of the constitutional provisions. Peremptory challenges have never been held to be a requirement of due process. Peremptory challenges in civil causes were unknown to the English common law, but Justice-Campbell definеd the Michigan law when he stated:
“Challenges for cause are necessary in all inquires by jury, but peremptory challenges in other than criminal proceedings are confined to cases' where the statutes have directly provided for them.”' Matter of Convers,18 Mich 459 , 468.
It is error to allow a peremptory challenge not authorized by statute.
Eldridge
v.
Hubbell,
The legislature has failed to provide for peremptory challenges under the act used in this particular condemnation proceeding. This it had a right to *625 do. Due process of law under the constitutional provisions was more than met by the careful examination of the jurоrs by the circuit judge and by the insistence of the circuit judge in giving the plaintiff the right to dismiss jurors for cause.
The decree of the lower court is affirmed. Defendant-appellee may have costs.
Notes
Blissfield Community Schools District v. Strech.