Edward Thompson Co. v. Gunderson

• Decision Date: 26 May 1897
• Citation: 10 S.D. 42,71 N.W. 764
• Parties: EDWARD THOMPSON CO. v. GUNDERSON.
• Court: South Dakota Supreme Court

10 S.D. 42

71 N.W. 764

EDWARD THOMPSON CO.

v.GUNDERSON.

Supreme Court of South Dakota.

May 26, 1897.

Appeal from circuit court, Hughes county; A. W. Campbell, Judge.

Action by the Edward Thompson Company against Albert Gunderson. From an order denying his motion for a new trial, defendant appeals. Affirmed.Wilson L. Shunk and Albert Gunderson, for appellant. Horner & Stewart, for respondent.

HANEY, J.

Defendant appeals from an order denying his motion for a new trial, made on the ground of misconduct of the jury. The alleged misconduct consists in the temporary separation of two jurors from the others after the case was submitted, and while the jury was absent from the jury room, in charge of a bailiff, for the purpose of taking supper. The affidavits of two jurors were read in support of the motion, to which plaintiff made proper and timely objection. They should not have been received, and cannot be considered. It is the settled law in this state that the testimony of jurors is inadmissible in support of a motion to set aside a verdict on the ground of mistake, irregularity, or misconduct of the jury, or some one or more of them, except in the cases expressly authorized by the legislature. Murphy v. Murphy, 1 S. D. 316, 47 N. W. 142;Gaines v. White, 1 S. D. 434, 47 N. W. 524;Ulrick v. Trust Co., 2 S. D. 285, 49 N. W. 1054;Territory v. King, 6 Dak. 131, 50 N. W. 623. Although the testimony of jurors will not be received to impeach their verdict, it does not follow that such testimony will not be received to sustain it when assailed. If the jurors are accused of misconduct, they may always show, by their oaths, not only in their own vindication, but, in furtherance of justice, that they were not guilty of the misconduct charged against them. 2 Thomp. Trials, § 2623; Power Co. v. Howard (Mass.) 23 N. E. 317;People v. Hunt, 59 Cal. 432;Jones v. State, 89 Ind. 82; Hutchinson v. Coal Co., 36 N. J. Law, 24; State v. Underwood, 57 Mo. 40;Downer v. Baxter, 30 Vt. 467. The affidavit of Juror Andrews was properly received for the purpose of showing that he was not, in fact, guilty of any misconduct which was prejudicial to the rights of the parties. The only reason for not allowing jurors to separate after a cause has been submitted is to prevent them from being improperly influenced by others; and when, as in this case, it affirmatively appears that during a temporary separation for an innocent purpose the juror has not conversed or held...