Blizzard v. Phebus

35 Ind. 284

• Court: Indiana Supreme Court
• Decided: May 15, 1871
• Status: Published

Opinion

Buskirk, J.

The record in this case presents no question for the decision of this court. The cause originated before a justice of the peace, and was appealed to the circuit court, where it was tried by a jury, resulting in a verdict for the defendant.

The plaintiff below, and appellant here, moved the court for a new trial, assigning as a cause that one of the jurors had formed and expressed an opinion as to the merits of the cause, prior to his being called as a juror, which fact was unknown when he was accepted on the said jury. A motion of this kind must be supported by affidavit. The clerk has copied into the record affidavits in support of the motion, and also affidavits on the part of the defendant, to the effect that the juror in question was sworn as to his competency as a juror, and stated that he had both formed and expressed an opinion, and that the plaintiff accepted him as a juror, with full knowledge that he had formed and expressed an opinion as to the merits of the cause; but the affidavits are not made a part of the record by a bill of exceptions. It has been so long and repeatedly decided by this court that affidavits filed during the progress of a cause can only be made a part of the record by a bill of exceptions, that it is hardly worth while to refer to such decisions, but we will refer to a few of the later decisions. Round v. The State, 14 Ind. 493 ; Leyner v. The State, 8 Ind. 490; Taylor v. Fletcher, 15 Ind. 80; Cochran v. Dodd, 16 Ind. 476; Murphy v. Tilly, 11 Ind. 511; Wilson v. Truelock, 19 Ind. 389; Merritt v. Cobb, 17 Ind. 314; Hasselback v. Sinton, 17 Ind. 545; Horton v. Wilson, 25 Ind. 316; Whiteside v. Adams, 26 Ind. 250; Bell v. Rinker, 29 Ind. 267; Fisher v. Ewing, 30 Ind. 130; Potter v. Stiles, 32 Ind. 318.

W. H. Blizzard, for appellant. E. Hughes, for appellee.

The judgment is affirmed, with costs.