O'Donnell v. Wetler

• Decision Date: 27 February 1905
• Citation: 59 A. 1055,72 N.J.L. 142
• Parties: O'DONNELL v. WETLER.
• Court: New Jersey Supreme Court

59 A. 1055

72 N.J.L. 142

O'DONNELL

v. WETLER.

Supreme Court of New Jersey.

Feb. 27, 1905.

(Syllabus by the Court.)

Appeal from District Court of Newark.

Action by Patrick O'Donnell against Frank M. Weiler. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued June term, 1904, before PITNEY and FORT, JJ.

A. A. Chambers, for appellant.

James M. Trimble, for appellee.

FORT, J. The first objection in this case is stated in the record in this way: "Before the jury was sworn, counsel for the defendant interposed a challenge to the favor. No ground was given for the challenge, and the same was denied." Whether the challenge was to the whole jury, just before it was sworn, or to the individual jurors as they were called, is not made clear, but in either event the ruling of the court was correct, as no grounds were given for the challenge. Challenges of jurors to the favor must be to them individually, and not to the whole panel as they sit in the box ready to be sworn. Chief Justice Hornblower, in State v. Spencer, 21 N. J. Law, 197, says: "All challenges to the favor are grounded on some facts or circumstances showing a probability that the juror is favorable to the one party or the other, but not amounting to a ground of principal challenge. All challenges to the polls, either principal or to the favor, may be made ore tenus, but must be distinctly or specifically made before they are tried, so that the court may see what is the legal character of the challenge." It has always been considered that a challenge must contain an allegation of the grounds of the challenge. A mere statement, "I challenge this juror to the favor," is not sufficient. The ground of the challenge must be stated, that the court may see that what is alleged as a challenge to the favor would constitute a good ground for sustaining such a challenge if it were established by the proof. A challenge to the favor, for instance, "because the juror is a neighbor," is not a legal challenge, and need not be tried, because, if proven, it would not avail for such a cause. Jones v. Butterworth, 3 N. J. Law, 456.

The next objection is to the state of demand. The statute declares that proceedings to dispossess, had by virtue of the landlord and tenant act, "shall not be appealed from or removed by certiorari; but the landlord shall remain liable in an action of trespass for any unlawful proceedings under this act." P. L. 1903, p. 29, § 7. No formal pleadings are required in a suit in the district court The state of demand need only state a cause of action, in such form as will make it to appear what the plaintiffs cause of action is. ruder the state of demand in this case, it would be difficult to determine just what style of action the plaintiff intended his suit to be. Probably the statement in the demand, "Whereby the said plaintiff * * * was, with his family, ejected, expelled, put out, and removed from the possession, use, occupation, and enjoyment of the apartments aforesaid," might be considered, under the informal requirements as to the pleadings in the district court, to state an action of trespass—at least, an action of tort, as such actions are now styled. In such a suit as this, there is no requirement in the plaintiff to set out in his state of demand that he was dispossessed under proceedings taken under the landlord and tenant act. He should declare in trespass, and the defendant may set up in his plea, or prove in the district court where no plea is required, the proceedings and warrant, under the landlord and tenant act, and the facts that entitled him to possession, as his justification for the trespass upon the possession of the plaintiff. The defendant must prove the fact that his proceedings to dispossess were pursuant to and in conformity with the statute, where he relies upon the statute for his right to dispossess. Chamberlain v. Hopper, 34 N. J. Law, 220. While we think the demand in this ease may be defective, the...