Fleeson v. Savage Silver Mining Co.

3 Nev. 157

Opinions

Opinion by

Lewis, J., Beatty, C. J.,

concurring.

But one error is relied on by the appellant in this case as a ground for the reversal of the judgment: namely, that the Court erred in overruling the challenge interposed to the juror John Grillig.

That jurors to be competent should stand indifferent, and should occupy no position nor stand in any relation which in contemplation of law renders them incapable of being impartial, there can be no question. They must be superior to every just objection, or in the language of Lord Coke, they should “ be indifferent as they stand unsworn.” When entering the jury box they should be free from all feelings of interest in the result of the action, from all prejudice against or favor towards either of the parties, with no opinion or conviction which would constitute the slightest obstacle to a fair consideration of the evidence, or a candid conclusion upon it.

We are satisfied beyond all doubt that the juror Gillig had an interest adverse to the plaintiff in this action, and was not, therefore, a competent juror.

The disqualifying interest, however, did not, as claimed by counsel for appellant, result from the contract to purchase a certain amount of the defendant’s stock, and which had been assigned by him at the time of the trial, but from the fact that he was a stockholder in the Savage Company at the time this suit was commenced and for some time afterwards, and thereby under the laws then existing became liable for his proportion of- the costs incurred during such time. By Section 16 of an Act entitled “An Act to provide for the Formation of Corporations for certain purposes,” approved December 20th, A.D. 1862, it is declared that each stockholder should be individually and personally liable for his proportion of all the debts and liabilities of the company, contracted or incurred during the time that he was a stockholder. This law, except the twenty-sixth section, which was annulled and made void by Congress, remained in force until it was repealed by the Legislature of the State on the tenth day of March,-a.d. 1865. This action having been instituted whilst that law was in force, and whilst the juror was the owner of a certain amount • of stock in the company, his liability for a proportion of the costs incurred in it became established. His interest in the result is therefore clear, beyond all question: for if the plaintiff succeeded in obtaining judgment against the defendant, he, the juror, would thereby become liable to pay a proportion of the costs incurred during the time he was a member of the company; whilst, on the other hand, if the plaintiff failed, no such liability would exist. Hence, he was evidently disqualified under the fifth subdivision of Section 162 of the Civil Practice Act; and had he tried the cause we would have no hesitation in reversing the judgment for that reason. It is, however, admitted by counsel that he did not, but was peremptorily challenged by the appellant after the Court refused to allow his challenge for cause; and there is nothing in the record to show, nor indeed does it seem to be claimed in argument, that there was any objection to either of the twelve jurors who found the verdict. Such being the case, it is left to be determined whether the error committed by the Court below, in overruling the plaintiff’s challenge for cause, was blotted out or cured by the subsequent peremptory challenge, or whether its effect was to prejudice or injure him, notwithstanding the juror did not try the cause. Upon this point we conclude that the peremptory challenge deprived the error, committed in overruling that challenge for cause, of all its force or effect as a ground for reversal of the judgment of the Court below.

Judgments otherwise l’egular and proper should not be set aside or disturbed for trivial or immaterial errors committed upon the trial. To justify a reversal by an appellate Court, the error should be of such character that its natural and' probable effect would be to change or modify the final result. If it is clear, from the record, that no injury resulted from the error, the judgment should not be reversed, for the appellate Court does not set aside the judgment of an inferior tribunal because of the mere error, but for the injury resulting from such error. True, it is not always necessary for the party complaining to show directly that he suffered injury, because injury is usually presumed to be the result of material error. It is, nevertheless, the injury directly shown, or presumed, which is in fact the inducement to the reversal of the judgment. Hence, the rule observed by all aj>pellate Courts, that only such errors as probably affected the verdict, or substantial rights of the parties, will warrant the granting of a new trial.

The ultimate object of all civil actions is to secure some legal or equitable right. The rules governing the impanneling of juries, the introduction of evidence and the general conduct of trials, are but the means by which such right is to be obtained. Unquestionably, those rules should be closely followed; but if it appear that a departure from them did not defeat or affect the ultimate object of the trial, it would be a mockery of justice to set aside a judgment otherwise proper and regular because of such departure. If the error complained of here was of a character likely to have affected the final result,the judgment should be reversed; otherwise it should be affirmed. If Gillig had acted as a juror, the injury to the appellant would be immediate, as it would deprive him of an impartial trial and force upon him an incompetent juror by refusing to sustain the challenge interposed by him. The presumption of injury in such case would be conclusive, because the juror, being rendered incompetent by law to sit in the case on account of interest in the result, the conclusion would be that he was influenced by such interest in finding the verdict. In that way the error of the Court in overruling the challenge would reach and affect the final result; but as the juror was peremptorily challenged and did not try the cause, how was the appellant injured by the error complained of? Counsel say, by being compelled to use one of his peremptory challenges to set aside a juror who should have been set aside for cause. That, however, could not possibly result injuriously to the appellant unless he had exhausted all his peremptory challenges, and there was some objectionable person on the jury who could not be set aside for cause. If it were shown to this Court that the appellant was improperly deprived of a peremptory challenge under such circumstances, where he may possibly have needed it, perhaps it might be treated as sufficient to authorize a reversal of the judgment. The law gives to each party in a civil action four peremptory challenges. If but one be used, though that be upon a juror who should have been set aside for cause, how can it result in prejudice ? The party in such case would have three challenges left, which he could use if any of the jurors were objectionable to him. The fact of his not choosing to use them creates a strong presumption that he was fully satisfied with the. jury — that it was unobjectionable to him. To obtain an impartial jury is the sole object of the law giving the right of challenge. Therefore, when such a jury is obtained, there can be no just grounds of complaint. By his own act in not setting aside any of the jurors when he had the power to do so, it is rendered clear that he had a jury satisfactory to himself. It is claimed by appellant that the record shows that his peremptory challenges were all exhausted. But we find nothing of the kind in the transcript presented to us. The only reference to or mention of such a fact is found in appellant’s assignment of errors. He says “ the Court erred in refusing plaintiff’s challenge to the juror John Gillig for cause, and compelling him to exclude said jui’or by peremptory challenge, thereby forcing him to exhaust his peremptory challenges, and thus disabling him from excluding other jurors to whom he objected.”

It is a proposition too clear for argument, that an assignment of errors cannot be received by an appellate Court as a statement of facts in favor of the party making such assignment. The party wishing to move for a new trial, or to take an appeal, may assign his errors in any form he pleases, and assume any position he may wish, but to make them available they must be sustained by a statement of the facts in the case.

The Court in settling, or counsel in agreeing upon a statement, does not pretend to pass upon the correctness of the assignment of errors, nor indeed has either of them a right to interfere with them. The assertion in the assignment referred to cannot therefore be received or treated as a fact in the case. The admission of counsel that the juror Gillig was set aside, is the only evidence which we have that the appellant used any of his peremptory challenges. As the law gives four peremptory challenges, and only one is shown to have been used by appellant, we must presume that he had three remaining which he did not use. It cannot certainly be presumed that they were all exhausted when the record shows but one of them used. Hence we must treat the case as if the record showed affirmatively that but one peremptory challenge was used by the appellant.

But as we have endeavored to show, the employment of one such challenge, though to set aside a juror who should have been.rejected for cause, will not justify tbe reversal of the judgment below. The view which we take of this question is fully sustained by the cases of Freeman v. The People, 4 Denio, 9, and Farriday v. Selser, 4 Howard Miss. Rep. 518). In the first of these cases the Supreme Court say: “ Upon this point the prisoner had the power and right to use his peremptory challenges as he pleased, and the Court cannot judicially know for what cause or with what design he resorted to them. He was free to use or not to use them as he thought proper, but having resorted to them they must be followed out to all their legitimate consequences. Had he omitted to make peremptory challenges, his exceptions growing out of the various challenges for cause would have been regularly here for revision. But he chose by his own voluntary act to exclude those jurors, and thus voluntarily, and as I think effectually, blotted out all such errors, if any, as had previously occurred in regard to them.”

In the last case, the same question is disposed of in the following manner:

“ It appears from the record, however, that when the juror was decided to be competent, Farriday set him aside by peremptory challenge. He did not therefore try the cause, and there is no exception to any of the twelve jurors who found the verdict. We are therefore inclined to the opinion that as the error complained of is not shown to have prejudiced the right of Farriday in any way, that it is not a good reason for reversing the judgment. It is a general rule that an appellate Court will not set aside a judgment otherwise regular and proper on account of a mistaken opinion of the inferior Court, which is not shown to have influenced the final result.” So it seems to be held in Tennessee. (McGowen v. The State, 9 Yerger, 184.)

It was not shown by the record in any of these cases whether the appellant had exhausted his peremptory challenges or not. They therefore clearly sustain the proposition that no injury will be presumed from the error complained of here, unless indeed it be shown by the appellant that his peremptory challenges were all exhausted. In such case, there being a possibility of injury, the judgment might be reversed.

But in this case, as we have shown, the presumption from the recor.d is that the appellant used but one of the challenges, and that he had three remaining unused.

There could therefore be no prejudicial results from the error complained of, and the judgment must be affirmed.

Johnson, J., having been counsel in this case, does not participate in the decision.