Western Roofing Co. v. South Park Baptist Church, 137 Mo. App. 101

Western Roofing Co. v. South Park Baptist Church

137 Mo. App. 101 | Mo. Ct. App. | 1909

BROADDUS, P. J.

— This is a suit to enforce plaintiff’s claim under the mechanic’s lien law. A trial was had and plaintiff recovered judgment. Defendant filed a motion for new trial, which was sustained, and plaintiff appealed.

Among other things, it is alleged in the motion for a new trial, that one of the jurors named Fein while the evidence was being heard and before the case was submitted to the jury repeatedly talked about the case with other members of the jury and with outside parties, and not only discussed the evidence, but discussed matters relating to the defendant within his own knowledge and outside of the evidence in the case. The motion was sustained on the ground of the alleged misconduct of the juror. On the hearing of the motion, Allen O. Austin, one of the jurors, over the objection of plaintiff, was *104allowed to testify as to what Fein said to him while sitting in the jury box and while they were together on the streets before the case was submitted to the jury. It is sufficient to say that the testimony of Austin went to sustain the grounds alleged in the motion. The plaintiff’s objection to the admission of Austin’s testimony was that he was not a competent witness to show the misconduct of the juror, and upon the further ground that defendant’s motion for a new trial did not affirmatively show that the alleged misconduct of the juror was not discovered or known to the respondent and its counsel before the retirement of the jury.

The defendant was’ a corporation and was represented at the trial by Glen Sherman and W. E. Burn-ham. The motion was not sworn to by defendant and its counsel, and did not state that they were not aware of the prejudice of the juror before the jury retired to consider its verdict.. It does appear, however, by the evidence of Mr. Sherman, one of defendant’s counsel, that he was not aware of the juror’s prejudice until after the verdict had been rendered.

The only question raised in this court is the legality of the action of the court in sustaining said motion for a new trial.

The defendant, to sustain its theory of the case, has relied mostly on cases decided in other jurisdictions, but, in our opinion, the decisions of the Supreme Court of this State are conclusive of the question, and, as we are bound by the latest expression of that court, it is unnecessary to discuss those of other courts. It is definitely decided in State v. Howard, 118 Mo. l. c. 136, that “The rule is that any such objection to a juror must be supported as well by the affidavit of counsel as of client; nothing less than this suffices.” And it will be seen that the court intended to emphasize the rule by italicizing the words, counsel and client. This rule has since been adhered to by the court. [State v. Hunt, 141 Mo. 626; *105State v. Richardson, 194 Mo. l. c. 337; State v. Barrington, 198 Mo. 93; State v. Matthews, 202 Mo. 143.]

The motion, to have been effective, should have been sworn to by both defendant’s counsel and the officer of the corporation who had charge of the case. There is the affidavit of no one made as to the truth of the allegations in the motion, and the motion is fatally defective in not stating that knowledge of the prejudice of the juror did not come to the defendant and its attorneys before the cause w-as submitted to the jury. As a rule, we are reluctant to interfere with the action of the court in awarding new trials, but we feel that it is unavoidable in this case without setting at defiance the rule as-established by the Supreme Court. And it can he said in its favor that it is a salutary rule.

The cause is reversed with directions to restore the verdict and render judgment thereon.

All concur.