Dorgan & Young Hdw. Co. v. Stephens

49 So. 871, 161 Ala. 660, 1909 Ala. LEXIS 174

Opinion

DOWDELL, C. J.

This appeal is taken from the judgment of the circuit court on a motion for a new trial. The only ground of the motion Avas the disqualification of one of the jurors Avho tried the case.

The affidavit of the defendant in support of his motion did not negative knoAvledge or notice of the alleged disqualification of the juror by tbe defendant’s counsel before and at tbe time of entering upon tbe trial. On the bearing of tbe motion it was shown by tbe juror, who was sworn and examined, that whatever disqualification existed, if any, and this we need not decide, was known to tbe defendant’s counsel at tbe time' of entering upon tbe trial and no objection was made. This was not disputed. Notice to tbe defendant’s counsel of the alleged disqualification was equivalent in law to notice to tbe defendant himself. — -In Sowell v. Bank of Brewton, 119 Ala. 92, 24 South. 585, it was said by this court, speaking through Brickell, C. J.: “Tbe verdict of a jury will not be set aside, and a new trial granted, unless it be shown affirmatively that the disqualification was unknown to tbe party moving for tbe new trial and his counsel (italics ours) when tbe juror was accepted —citing Rollins v. Ames, 2 N. H. 349, 9 Am. Dec. 79, and note; Cannon v. Bullock, 26 Ga. 431; Hilliard on New Trials, 181; 2 Graham, and Waterman on new Trials, 474.

The court erred in setting aside tbe verdict and judgment and granting tbe new trial. Tbe judgment of the court in granting tbe motion is reversed, and a judgment will be here rendered overruling tbe motion for a new trial.

Reversed and rendered.

Anderson, McClellan, and Sayre, JJ., concur.