71 Ind. 555 | Ind. | 1880
This was a suit by the appellees against the appellant, to recover the possession of certain real estate, particularly described, in Tippecanoe county, Indiana. The appellant answered the appellees’ complaint by a general denial thereof. The issues joined were tried by a jury, and "a verdict was returned for the appellees, to the effect that they were the owners and entitled to the possession of the real estate described in the complaint, and that they had sustained damages by reason of the unlawful detention of said real estate in the sum of $164.44. The appellant’s motion for a new trial having been overruled, and his exception saved to this ruling, the court rendered judgment on the verdict.
In this court the only error assigned by the appellant is the decision of the circuit court in overruling his motion for a new trial. In this motion the following causes were assigned for such new trial:
1. The verdict of the jury was not sustained by sufficient evidence;
2. The verdict was contrary to law; and,
3. “ That there was irregularity in the proceedings or orders' of the court, in this, that, after the jurors of the regular panel had been discharged for the term, the trial was had and ordered by the court, over the objections of the defendant.”
The only question presented for decision, and discussed by the appellant’s counsel in his brief of this cause, is the supposed irregularity in the proceedings and orders of the court, which constitutes the third reason or cause assigned for a new trial in the motion therefor. This question was duly saved in the record by a proper bill of exceptions, which showed, in substance, the following facts: On the 25th day of June, 1878, being the 56th judicial day of the
The question for decision is, did the court err in over
“A new trial may be granted in the following cases, and upon the following terms :
“ First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.” 2 R. S. 1876, p. 179.
It will be observed, from the summary we have given of the record before us, that the appellant does not claim that the jury trying this cause was not composed of competent jurors; but his sole complaint is, that this jury, having been publicly told by the court that they were discharged for the term, and having retired from the courtroom, were no longer the regular panel of jurors for that term, and could not be recalled by the court within the same day, for the trial of this case. We can not see this question in the light in which the appellant’s counsel seeks to present it. We. think that the court, under the facts shown in the record, had full power and authority under the law, at any time during the term, to order and direct the recall of the jurors of the regular panel, as such regular panel, for the trial of this cause, notwithstanding their previous discharge, and without the issue of any formal summons for their recall. If it were conceded that the action of the court in the premises was informal or irregular, before such irregularity or informality could be
We are of -the opinion, that the appellant’s motion for a new trial of this cause was correctly overruled.
The judgment is affirmed, at the appellants’ costs, with ten per centum damages. And it appearing to the satisfaction of the court, that, since the submission of this cause, the appellant has departed this life, the judgment of this court is rendered as of its November term, 1878.