49 Iowa 267 | Iowa | 1878
He relies upon a provision found in section 2566 of the Code, which is in these words: “The defense of a minor must be by his regular guardian, or by a guardian appointed to defend
It is undoubtedly the duty of every court to guard with great care the rights of minors, who, in contemplation of law, are incapable of acting for themselves. If, therefore, it appeared to us that the defendant did not have as fair a trial in every respect as he could have had if a guardian ad litem had been appointed before the commencement of the trial, we should not hesitate to hold that a new trial ought to be given. We can conceive, for instance, that a minor might employ young and inexperienced counsel in a ease of great magnitude, and that a guardian ad litem, upon being appointed, might prefer to employ other counsel. In such case it would be proper to allow them sufficient time to become acquainted with the points of the defense, and, if they desired it, to allow them the privilege of impaneling a new jury and commencing the trial anew. In the case at bar it is not claimed, nor was it claimed in the court below, that other counsel were needed. It was suggested that other counsel might be employed. But this was not sufficient. If the court knew, as we may presume it did, that the counsel already employed and engaged in the defense, and who was appointed guardian ad litem, was an able and experienced lawyer, and abundantly qualified in every respect to conduct the defense, it was justified in disregarding the suggestion that other counsel'might be employed.
We can conceive of no advantage in this case which could have accrued to the defendant if the guardian ad litem had been appointed before instead of after the commencement of the trial. If Mr. Boardman, by reason of his appointment, considered himself charged with greater responsibility, or was stimulated to greater effort, he still had an opportunity to supply any omissions. While, therefore, the practice of neglecting the appointment of a guardian ad litem until after the commencement of a trial is not to be encouraged, it appears to us that the failure to do so, under circumstances which pre
The court instructed the jury that the statements of eoun-. sel concerning the procurement of the deposition of the witness Ankeny were not admissible or proper for their consideration. Misconduct of this kind may be such as to justify a court in setting aside a verdict. The counsel charged with the improper statement claims, that what he said was that he believed that Ankeny’s testimony was bought. The objectionableness of the statement could' be determined only by having before us the precise words used. The court must be presumed to have heard them, and to have deemed it sufficient to instruct the jury as it did. In refusing to grant a new trial the court may have.acted more upon its own recollection of the words used than upon the affidavit of Timmons. Such being the case we do not think that we should be justified in saying that the misconduct was such that the verdict should be set aside.
III. The verdict was for five thousand dollars. It is urged
Aeeirméd.