Burke v. McDonald

• Decision Date: 10 February 1892
• Citation: 3 Idaho 296,29 P. 98
• Parties: BURKE ET AL. v. McDONALD ET AL
• Court: Idaho Supreme Court

29 P. 98

3 Idaho 296

BURKE ET AL. v. McDONALD ET AL

Supreme Court of Idaho

February 10, 1892

JURORS-CHALLENGES FOR CAUSE AND PEREMPTORY-IMPROPER CONDUCT-INSTRUCTIONS-LOCATION OF MINING CLAIM-PARTY DOES NOT LOSE PEREMPTORY CHALLENGE WHEN DISCOVERED JUROR WAS INCOMPETENT.-1. A juror who is incompetent under the statute swears falsely upon examination on his voir dire, and thereby compels the plaintiff to exhaust one of his peremptory challenges, to exclude him, and before the jury is completed plaintiff discovers that said juror was incompetent, and offers to make proof thereof, he should be permitted to do so, and upon satisfactory proof being made, his peremptory challenge should be restored to him.

IMPROPER CONDUCT GROUND FOR REVERSAL.-2. A judgment in favor of a party guilty of improper conduct calculated to influence the jury or any member thereof, in his favor, in rendering the verdict, should be reversed and a new trial granted on the ground of public policy.

LOCATION OF MINING CLAIM.-3. "A valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following with the expectation of finding ore," is a proper instruction, and changing the word "willing" to "justified" radically changes the instruction, and is an improper modification.

DATE OF DISCOVERY OF CLAIM.-4. Where a discovery is made by a prospector of such a character as to entitle the prospector to make a valid location on the 16th day of September, and he sets his discovery stake on that day, partially stakes and marks his claim on the 17th, and completes his staking and marking of boundaries according to law on the 18th, his discovery and location will date from the sixteenth day of September.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Judgment reversed, and new trial granted. Costs awarded to plaintiffs against the defendants, including the costs of the part of the transcript stricken out.

Woods &amp Heyburn, for Appellants.

Where a peremptory challenge has been exercised against a juror, who could have been excluded for cause, which would undoubtedly have given them another peremptory challenge, which they swore they desired to exercise against another juror, whom it appears from the record they were forced to retain, the court, with the facts fully before it, refused to recall the juror or grant plaintiffs any relief. This was error, by which the plaintiffs were prevented from having a fair trial. (The Anarchists' Case, 123 U.S. 131, 8 S.Ct. 22; Ochs v. People, 124 Ill. 399, 16 N.E. 662; Theisen v Johns, 72 Mich. 285, 40 N.W. 727; Thurman v State, 27 Neb. 628, 43 N.W. 404; People v. Price, 53 Hun, 185, 6 N.Y.S. 833. See State v. Brecht, 41 Minn. 50, 42. N. W. 602; Balding v. State, 23 Tex. App. 172, 4 S.W. 579; People v. Brown (Cal.), 13 P. 222; Hopt v. People, 120 U.S. 430, 7 S.Ct. 614; Hencke v. Railway Co., 769 Wis. 401, 34 N.W. 243.) The fact that a notice of location is not recorded is immaterial in the absence of evidence of a local rule or custom regarding it. (Souter v. Maguire, 78 Cal. 543, 21 P. 183; Thompson v. Spray, 72 Cal. 533, 14 P. 182.) If a discovery at any time before any rights intervened, under a valid location, that the location would be valid. (Zollars etc. Min. Co. v. Evans, 2 McCrary, 39, 5 F. 172, 4 Morr. Min. Rep. 407; Jupiter Min. Co. v. Bodie Co., 7 Saw. 96, 11 F. 666, 4 Morr. Min. Rep. 411; Van Zant v. Argentine Min. Co., 2 McCrary, 159, 8 F. 725, 4 Morr. Min. Rep. 441; Golden Terra Min. Co. v. Mahler (Dak.), 4 Morr. Min. Rep. 390.) Reversible error if jury or jurors were entertained while in charge of sheriff by a party to the litigation. (People v. Backus, 5 Cal. 275; People v. Bonney, 19 Cal. 445; People v. Brannigan, 21 Cal. 337; McLain v. State, 10 Yerg. 241, 31 Am. Dec. 573; Short v. West, 31 Ind. 368; Aetna Ins. Co. v. Grube, 6 Minn. 85; Jumperty v. State, 21 Ill. 411; Organ v. State, 26 Miss. 78.) Where the successful party to a suit is shown to have attempted by improper means to influence the verdict in his favor, by corrupting or intimidating particular jurors, or arousing prejudice in their minds by undue hospitalities or civilities, the verdict will be set aside on the ground of public policy, without reference and without considering whether the attempt was successful or not." (Hayne on New Trial and Appeal, sec. 48; Ritchie v. Holbrook, 7 Serg. & R. 458; McDaniels v. McDaniels, 40 Vt. 374, 94 Am. Dec. 408; Bradbury v. Cony, 62 Me. 227, 16 Am. Rep. 449, and note.)

McBride & Allen, W. H. Claggett, Frank Ganahl and Albert Hagan, for Respondents.

No specifications of the particular errors upon which the plaintiffs would rely was contained in the notice of intention to move for a new trial, nor was any such embraced or contained in the motion itself. (Partridge v. San Francisco, 27 Cal. 415; Hayden v. Jordan, 28 Cal. 312; Leroy v. Rogers, 30 Cal. 233, 89 Am. Dec. 88; Zenith Co. v. Irvin, 32 Cal. 333; Love v. S. N. L. W. Co., 32 Cal. 350; Barstow v. Newman, 34 Cal. 91; Beans v. Emanuelle, 35 Cal. 320.) "Where the party moves for a new trial on the ground of misconduct on the part of the jury, which he pleads during the trial, he must aver in his motion and show affirmatively that he and his counsel were ignorant, until after the jury retired, of the fact of such misconduct." (Woodruff v. Richardson, 20 Conn. 238; Pettibone v. Phelps, 13 Conn. 445, 35 Am. Dec. 88, and note; Allen v. Blunt, 2 Wood. & M. 121, 148, Fed. Cas. No. 217; Martin v. Tidwell, 36 Ga. 332, 345; Hunter v. State, 43 Ga. 484, 524; Gogswell v. State, 49 Ga. 103; McAllister v. Sibley, 25 Me. 474, 487; Gibson v. Williams, 39 Ga. 660; Brown v. State, 28 Ga. 439; Cannon v. Bullock, 26 Ga. 431; Barlow v. State, 4 Black, 114.)

MORGAN, J. Sullivan, C. J., and Huston, J., concur.

OPINION

MORGAN, J.

The plaintiffs allege that they, and each of them, are citizens of the United States; that prior to the sixth day of December, 1887, the plaintiffs were, ever since have been, and now are the owners, subject to the paramount title of the United States, and in the possession and entitled to the possession, of that certain mine containing a lode of rock in place, bearing gold, silver and other precious metals, situated in Yreka mining district, Shoshone county, Idaho, called the "Mammoth," and further particularly describing it; "that the defendants, claiming to be the owners of an adjacent mining claim, called the 'Lackawana Mining Claim,' upon the seventh day of December, 1887, wrongfully caused said Lackawana mining claim to be so surveyed as to crop out upon and overlap the said Mammoth mining claim and lode, and included a portion thereof, described as follows [here follows a description of the part of the Mammoth claim alleged to be included in the lines of the Lackawana], containing an area of something over eleven acres; that the defendants have made application for a patent in the United States land office, and given notice thereof; that in said application the defendants wrongfully set up that they are in possession of the whole of that part of the Mammoth claim included in the lines of the Lackawana; that the plaintiffs duly filed their protest in the United States land office, and adverse claim to said application, and that proceedings are stayed in said office to await the result of this suit; that the said claim for patent is a cloud upon the title of these plaintiffs." The plaintiffs pray that their title to and possession of said mining claim be quieted, for injunction, and for other relief. The defendants deny, specifically, each and all of the allegations of the plaintiffs, claim title and possession in themselves of the whole of the Lackawana claim, and ask for judgment that the suit of plaintiffs be dismissed, that the defendants be adjudged to be the owners of, and in possession of, said claim, and the whole thereof; for injunction and costs. The cause was tried before the Honorable Willis Sweet, J., and a jury, resulting in a verdict and judgment in favor of the defendants. The plaintiffs moved the court to set aside the verdict, and for a new trial, which being denied, the plaintiffs bring the cause to this court on appeal.

The plaintiffs assign the following as errors of which this court, in the present condition of the transcript, can take notice, to wit: "The court erred in refusing to recall Juror Pressey for examination on his voir dire, and in forcing plaintiffs to a peremptory challenge of the said juror." The statement shows that Juror Henry Pressey when upon examination on his voir dire, stated that he did not stand in the relation of debtor or creditor to either party to the action; that he was acquainted with all the parties. He was examined at considerable length both by the attorneys for the plaintiffs and by the court. He was finally challenged for cause for the reason that he had indorsed checks and deposited them in the bank, for the payment of which some of the plaintiffs were responsible, and he did not know whether they had been paid or not. The court denied the challenge, and the plaintiffs excepted. The plaintiffs then challenged the said Henry Pressey peremptorily. On the next day, and before the panel for the jury was completed, the attorney for the plaintiffs requested the court to recall said Pressey, and place him in the jury-box, and that plaintiffs be permitted to prove that said Pressey was largely indebted to certain of the defendants in the action, and was so indebted at the time of his examination. This request was made in order that the plaintiffs could secure the exclusion of said Pressey for cause, and not be compelled to exhaust one of their peremptory...