Davis v. Melvin

1 Ind. 136

Opinion

Smith, J. —

Davis, the plaintiff in error, sued Melvin and Boss, in an action of trespass. Upon a motion for a new trial, one of the reasons filed, was:

“That the defendants, during the progress of the cause, treated some of the jurors trying the cause to spirituous liquors.”

In support of his motion, and to establish the fact of such treating, “ the plaintiff proposed and offered to examine orally, on oath, Philip Ruter and William Pro, to which the defendants objected. The objection was sustained by the Court, and said witnesses were not permitted to be sworn,” with a view to such oral examination. This is the only error assigned by the plaintiff.

J. 8. Watts', for the plaintiff. C. L. Dunham, for the defendants.

The record shows nothing to authorize the conclusion that the Court erred. The persons whom the plaintiff wished to have sworn, may not have been competent witnesses. The party alleging error must show error, or it will be presumed the Court did right. It is, therefore, unnecessary to decide in this case, whether, as a rule of practice, oral testimony should be received of such facts, in support of a motion for a new trial

Footnotes

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(1).

It also appears that, upon the trial, the defendants excepted to a decision of the Court in the taxation of costs, which they now assign as error. One McDonald, being examined as a witness on behalf of the plaintiff, the defendants called and examined fifteen witnesses to impeach his credibility; and the Court, on motion of the plaintiff, ordered the costs of all but three of these witnesses to be taxed against the defendants.

The R. S. c. 40, s. 248, p. 718, provides, that, if either party shall cause more than three witnesses to be subpoenaed to prove the same identical fact, such party shall pay the whole costs occasioned by such additional number of witnesses. The provision is general, and we cannot say it is not applicable when the witnesses are called to impeach, the credibility of other witnesses. As the record does not sh'ow the contrary, it must be presumed that the witnesses, in this case, all testified to the same identical fact.

Per Curiam. —

The judgment is affirmed with costs.

Affidavits of jurors, or of a party, as to a juror’s statements, are inadmissible to impeach tlreir verdict. Dunn v. Hall, 8 Blackf. 32. See Drummond v. Leslie, 5 id. 453, and Ward v. The State, 8 id. 102, on the same subject.