79 Va. 660 | Va. | 1884
delivered the opinion of the court:
The plaintiff’s declaration contains three counts, the material allegations in which are substantially the same.
Omitting the usual preliminary matter of inducement the declaration avers that, at the time of the alleged grievances thereinafter set forth, and thereafter until the commencement of this suit, the plaintiff was lawfully possessed of a certain dwelling house, with the appurtenances, situate and being in
The second count—after settiug out that, at and before the time of the committing of the grievances thereinafter mentioned, the plaintiff was lawfully possessed of a certain other messuage and premises situate and being in the said town of Suffolk, which, at the several times therein mentioned, the said plaintiff occupied, inhabited and dwelt in—avers that, the defendant, well knowing the premises, hut contriving and intending to injure, prejudice and aggrieve the said plaintiff, and to incommode and annoy her in the possession, occupation and enjoyment of the same, theretofore, to-wit: on the -day of-, 18—, and on the several days and times aforesaid, wrongfully and injuriously caused divers noxious, offensive and unwholesome vapors, fumes, smells and stenches to arise and ascend near to, in and about the said last mentioned messuage and premises of the said plaintiff, and that the same have thereby been rendered and are become uncomfortable, unhealthy and unwholesome and unfit for habitation; and that the said plaintiff hath thereby been and still is greatly annoyed and incommoded in the possession, use, occupation and enjoyment thereof, and hath been and is by means of the premises otherwise greatly injured and damnified.
The third and last count avers that, at the time of the committing of the grievances therein mentioned, the said plaintiff was and from thence, &c., lawfully possessed of a certain other messuage and premises situate and being in the town of Suffolk, county of Nansemond, and state of Virginia, which said messuage and premises the said plaintiff purchased and became lawfully possessed of, and inhabited and occupied before the said defendant had bought and made the said market-place, and before she had any knowledge or information that the said de
The cause was tried at the October term, 1882, of said circuit court, when the jury returned a verdict in favor of the plaintiff, assessing her damages at $500, that being the amount of damages laid in the declaration.
By bill of exceptions, No. 1, it appears that before the jury was sworn to try the issue in the cause, the defendant objected to Francis O. Rawls, Euclid B. Holloman and Columbus Lassiter, three of the jurors, on the ground that they were citizens and tax-payers in the town of Suffolk, and hence had such an interest in the result of the cause as to render them incompetent jurors. It appears that each of these jurors were sworn to answer such questions as might be propounded to them by the court; that they were questioned by the court touching any interest or bias they might have in respect to the matter to be tried, and that each of them answered that he was a resident in and tax-payer of the town of Suffolk, yet each stated that he was conscious of no bias or prejudice for or against either party, but could and would render a verdict according to the evidence, and thereupon the court permitted them to be sworn as jurors. It also appears by this bill of exceptions that no exception to this ruling of the court was taken at the time, nor any notice given of any intention to save the point until after the verdict was rendered by the jury. The objection came too late. The well settled practice is to either take the exception at the time of the ruling objected to, which it is the right of the exceptor to do, or else as a matter of conscience, and to prevent unnecessary delay in the trial, to give notice that the point ruled is to be saved if necessary, and it is indispensable, at all events, to give such notice before verdict. 4 Minor’s Inst., part 1, 745; Washington and N. O. Telegraph Co. v. Hobson & Son, 15 Gratt. 122.
Moreover, any interest or bias that these jurors might have felt, so far as disclosed by the record, would, in the nature of things, they being citizens and tax-payers of said town, have been in favor of and not to the prejudice of the defendant cor
The second assignment of error by the appellant is, that the verdict is contrary to law and to the evidence, and that the damages are excessive. This is the defendant’s bill of exceptions Ho. 2, in which is certified, not the facts proved, but the evidence. In such case, nothing is better settled than the rule which requires the court to exclude all the parol evidence of the exceptor in conflict with that of his adversary, and giving full faith and credit to the latter, refuse to set aside the verdict and grant a new trial, unless it then plainly appears that the verdict is wrong. Read v. The Commonwealth, 22 Gratt. 924, and numerous other cases.
The only direct evidence offered for the plaintiff is the testimony of the plaintiff herself. She testifies in substance that she was the owner in fee of the house and lot described in the declaration and immediately adjoining the market-house, in the town of Suffolk; that she had owned her lot about.seven years, and that it cost her one thousand dollars with the mere shell of a house upon it; that she weather-boarded and painted the house, and plastered the whole inside of the building, and had fenced and repaired the property generally at a very considerable outlay. That at the time she purchased and improved her
By the said third bill of exceptions, it appears that the defendant moved the court to set aside the verdict and grant it a new trial, on the ground that the jury was irregularly and unlawfully chosen. And the said fourth bill of exceptions rests upon the alleged error of the court below in overruling the defendant’s motion for a venire facias denovo. The facts certified in said bill of exceptions No. 3, are these: The Hon. R. H. Rawls, judge of the county court of Nansemond, and who was also one of the counsel for the plaintiff in this cause, gave the sheriff a list of twenty-eight names of citizens residing in different districts of said county, equally and of all political parties, to be summoned as jurors for the term of the said circuit court at which this case was tried. That when the clerk applied to Judge Rawls for a jury he (Judge Rawls) stated that he did not have have time to make a list of three hundred; that he would make a list of twenty-eight, if he would accept it as satisfactory, which was done. That the clerk issued a venire facias for the said twenty-eight citizens, and they were summoned by the sheriff to serve as jurors, and from this list of persons, the jury, which rendered the verdict in this cause, was regularly chosen; that the said jurors were not drawn by the clerk from the jury-box in the clerk’s oifice. All of which fact's were admitted in open court by the said R. H. Rawls. But the court being of opinion that the defendant had sustained no injury on account of the irregularity in obtaining the jury, and the defendant making no objection before the swearing of the jury, overruled the said motion and refused to set aside the said verdict and grant a new trial.
It was conceded in argument here that not only was this ob
By section 21, chapter 158, Code 1873, it is provided: “ No irregularity in any writ of venire facias, or in the drawing, summoning, returning, or empaneling of jurors, shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the swearing of the jury.”
The terms of this section embrace everything in the nature of a. departure from the regular mode prescribed for the make up of jurors. That the venire facias in this case was irregular is undeniable ; but it is one of the irregularities provided for by said section 21 of chapter 158. It is, however, under the circumstances, an irregularity of which complaint was made too late, one which worked no injury to the defendant, as certified by the trial-judge, who had all the facts and circumstances in hand.
We must not, however, be understood as giving the least judicial sanction or encouragement to such irregularity. On the contrary, while it is pleasant in this case to feel, as we do, assured that no corrupt or even improper motive is imputed by any one to the county judge, who has been guilty of this serious omission, it is only by virtue of the statute above referred to, and the circumstances which exempt the dereliction from suspicion of any improper motive that it can be excused.
Upon the whole, we are of opinion there is no error in the judgment of the said circuit court, and the same must be affirmed with costs to the defendant in error.
Judgment affirmed.