Waltz v. Neusbamer

18 Ind. 374

• Court: Indiana Supreme Court
• Decided: May 15, 1862
• Status: Published

Opinion

Per Curiam.

The appellee, who was the plaintiff, brought this suit against Waltz, to recover rent of farm, &c. The issues were submitted to a jury, who found for the plaintiff. Motion for a new trial denied, and judgment on the verdict.

As a cause for a new trial, the defendant assigned as follows: “Accident and surprise, which ordinary prudence could not have guarded against, as alleged in an affidavit of defendant filed with and in support of the assigned cause. The affidavit is as follows: “Defendant, being duly sworn, &e., on his oath, says that Joel Barnhart and Calvin Barnhart, two of the jurymen who tried said cause, are and were of kin to the plaintiff', as he, defendant, has been informed and verily beHeves; and that fact, as he believes, had an influence on the minds of the jurymen to his prejudice; that defendant did not discover the fact above stated until after the jury had been empanneled, and the trial was nearly completed, and that he was not fully satisfied of the fact until the verdict was rendered; that defendant believes it to be true that, through inadvertence, the jury were not examined on their oath touching their qualifications; that they were not of the regular pannel; and further, the defendant says that he was taken by surprise when he first discovered the- above facts.”

Conner Pound, for the appellant.

As this affidavit fails to point out the degree of-relationship existing between the jurors and the plaintiff, it must be held defective, and as constituting no ground in support of the assigned cause for a new trial. Baily v. Richardson, at the present term. The motion for a new trial was, correctly,overruled. There is another error assigned, but it is not noticed in the appellant’s brief, and will not, therefore, be noticed in this Court. See Rule 28, Ind. Dig. p. 721.

The judgment is affirmed, with 5 per cent, damages and costs.