Atl. & D. R. Co v. Peake

• Decision Date: 20 November 1890
• Citation: 12 S.E. 348,87 Va. 130
• Court: Virginia Supreme Court
• Parties: Atlantic & D. R. Co. v. Peake.

87 Va. 130

12 S.E. 348

Atlantic & D. R. Co.

v.Peake.

Supreme Court of Appeals of Virginia.

Nov. 20, 1890.

Special Jury—Continuance—Eminent Domain— Damages—Remarks op Juror—Appearance.

1. Under Code Va. § 8158, providing that a court "may allow a special jury, " the allowance of a special jury is not a matter of right, but rests in the sound discretion of the court.

2. The allowance of an amendment to the sheriff's return on a writ of summons is not ground for continuance, though, before the amendment, there was nothing to show a valid service of the writ, especially where the case had previously been set for trial by consent.

3. Where the bill of exceptions states that the court, in refusing a continuance because of the absence of a material witness, directed the witness to he summoned to appear on the next day, to which time the case was adjourned, error cannot be predicated of the refusal, in the absence of a showing that the witness did not appear in obedience to the summons.

4. One who, after the construction of a railroad, purchases land adjacent thereto, can recover of the railroad company for damages to his crops through the overflow of streams, owing to the fact that, in the construction of the railroad, no sufficient drains or outlets for these waters were provided.

5. It is too late after verdict to object for the first time to remarks by jurors in the course of the trial.

6. Under Code Va. § 3168, declaring that "a juror knowing anything relative to a fact in issue shall disclose'the same in open court, " error cannot be predicated of a juror's saying, in regard to certain testimony of plaintiff: "Yes, sir; I know all about it. That's so. "

7. Defendant, by appearing and pleading to an action, waives all irregularities in the service and filing of papers.

Lacy and Fauntleroy, JJ., dissenting.

Error to circuit court, Norfolk county. Murdaugh & Marshall, for plaintiff in error.

J. F. Crocker, for defendant in error.

Lewis, P. The first of the numerous errors assigned is that the circuit court erred in overruling the motion for a special jury. It appears from the bill of exceptions on this subject that the motion was put upon the ground that the case was one "involving questions in which a whole magisterial district was interested, and that it would be almost an impossibility to draw from the 'jury-box' or 'jury-list'a jury that would not contain some name or names from that district, and that there was much prejudice in that district against the defendant company; but, [it is further certified,] there being produced no evidence or affidavits to prove the grounds of the motion, the court overruled it. " The question is thus virtually presented whether the allowance of a special jury is or is not a matter of right. If it is, there was error in overruling the motion. If it is not, then the ruling was correct, although it is believed that, according to the usual practice in the courts of this state, a request for a special jury is rarely refused. Blackstone says, in treating of special juries, that they were originally introduced in trials at bar when the causes were of too great nicety for the discussion of ordinary freeholders, or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. 3 Bl. Comm. 357. In his treatise on Trial by Jury, (section 72,) Proffatt, after quoting this passage from Blackstone, lays it down that a motion for a special jury is addressed to the discretion of the court. " And it is evident, " he adds, "that certain reasons or circumstances must be presented by a party who makes a motion for the impaneling of such a jury." In this country it is generally a matter of statutory regulation. In some of the states amotion for a special jury is allowed as of course, but it is not so in all of them, nor is it so in this state. The language of our statute, now carried into section 3158 of the Code, is that "any court, in a case where a jury is required, may allow a special jury, " etc.; thus leaving it, as at common law, to the discretion of the court, —a discretion, it is true, not arbitrary, but a sound judicial discretion, to be governed by settled principles, and reviewable, when exercised, by the appellate court. Each case, therefore, must stand upon its own circumstances; and, when it appears from a survey of the whole record that injustice has not been done, the judgment of the trial court will not be reversed, although the appellate court may be of opinion that, upon the showing made, a special jury ought to have been allowed. In such a case, the error is not to the prejudice of the party complaining. Without, therefore, undertaking to lay down any more precise rule on the subject, or to indicate what particular state of facts ought to make it proper to order a special jury, it is enough, for the purposes of the present case, to say that it does not appear that the discretion of the trial court, in this instance, has been abused. The case is not one in its nature of exceptional difficulty or importance, and the court wasnot bound to act upon the unsupported assertion of counsel as to the existence of a general prejudice against the defendant company in the particular locality in which the alleged injury occurred. And it may be added that if such prejudice did in fact exist, no trace of it is to be found in the verdict, as we shall presently see in another connection. The statute, moreover, gives the right to either party to a suit to have any person who is called as a "juror" therein examined on oath, to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and it is further provided that the party objecting to the juror may introduce any competent evidence in support of the objection, and that, if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that cause, Code, § 3154. Whether this privilege was exercised or not in the present case does not appear, nor does it appear that any objection to the jury that tried the case, or to any member thereof, was made before the verdict was rendered. In Richard's Case, 11 Leigh, 690, the defendant, who was an alien, and indicted for perjury, moved the court for a jury de medietate lingua); and, in deciding the case the general court was called upon to construe the then statute on the subject, the language of which was that "juries de medietate lingua? maybe directed by the courts respectively." It was contended that this statute was imperative, and that the word "may" therein ought to be construed as meaning "shall." Rut the court held otherwise, saying it was only intended to confer upon the courts the ancient common-law discretionary power to direct such juries, if to them it should seem proper. And to the same effect is Brown's Case, 11 Leigh, 711.

The next question relates to the refusal of the court to grant a continuance on the motion of the defendant. The motion was based upon two grounds. The first was that, before the sheriff's return on the writ of summons was amended, there was nothing to show a valid service of the writ. And this is not disputed. Railroad Co. v. Ashby's Trustees, 9 S. E. Rep. 1003. But that circumstance did not entitle the defendant to a continuance, especially in view of the fact that the case, by consent, had been previously set for trial on the same day on which the order permitting the amendment was made. The second ground of the motion was that the defendant had only the day before learned, accidentally, that one Trotman was a material witness, and that, although a subpoena for him had at once been sued out, it had not been served, and the witness was then absent. The bill of exceptions, however, further states that the court, in overruling the motion, directed the witness to be summoned to attend the court the next day at 11 o'clock, to which...