Hurt v. Monumental Mercury Mining Co.

Citation206 P. 184,35 Idaho 295
PartiesBRADFORD HURT, Appellant, v. MONUMENTAL MERCURY MINING COMPANY, a Corporation, Respondent
Decision Date30 March 1922
CourtUnited States State Supreme Court of Idaho

EXAMINATION OF JURORS-PEREMPTORY CHALLENGES-EXCEPTIONS-CONTRACT-PAROL EVIDENCE TO VARY CONTRACT-DEFECTIVE ASSIGNMENTS OF ERROR-INVITED ERROR.

1. Where in the course of examination of jurors upon their voir dire the court stated to counsel that his peremptory challenges were exhausted, no exception being taken by counsel to such statement of the court and no particular juror having been challenged in an attempt to exercise the right, such action of the trial court is not subject to review on appeal.

2. Where a party plaintiff has used three of the four peremptory challenges allowed him under the provisions of C. S., sec 6843, and waived the fourth and accepted the jury, he is not thereafter entitled to peremptorily challenge the juror placed in the box to fill the vacancy occasioned by the exercise of the defendant's fourth challenge.

3. Where parties have entered into a contract or agreement which has been reduced to writing, if the writing is complete upon its face and unambiguous, no fraud or mistake being alleged or shown, parol evidence is not admissible to contradict vary, alter, add to or detract from the terms of the contract.

4. Assignments of error based upon the rulings of the court during the trial will not be reviewed upon appeal where counsel for appellant does not specify in his brief the folios or pages in the transcript on appeal where the alleged erroneous rulings of the court appear.

5. Any error in admitting evidence, which went only to the amount of damages, was made immaterial by the general verdict for defendant.

6. An assignment of error to the effect that the evidence is not sufficient to support the verdict or judgment will not be considered by the appellate court where appellant has failed to point out specifically in his brief the folios or pages in the transcript on appeal upon which he relies in making such assignment.

7. Where in the trial of a case counsel knows that prejudicial remarks have been made in the presence of the jury and does not call such circumstance to the attention of the court, but sits quietly by knowing that error has been committed and awaits the verdict of the jury, he is thereafter estopped upon motion for a new trial from urging such alleged error as a ground for new trial.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Reddoch, Judge.

Action for conversion. Judgment for defendant and order denying a motion for new trial. Affirmed.

Judgment and order affirmed. Costs awarded to respondent.

S. T Schreiber, for Appellant.

The court erred in denying the appellant his fourth peremptory challenge, which compelled him to accept juror Wells, whom he positively knew was biased and prejudiced. The sitting of the juror Wells after the remark of the court, which still further prejudiced him against the plaintiff, prevented a fair trial. (People v. Backus, 5 Cal. 275; People v. Ah You, 47 Cal. 121; State v. Pritchard, 15 Nev. 74.)

The errors in law, which occurred beginning with impaneling of the jury, at which time the court denied the respondent his last and fourth peremptory challenge, was irregularity of the jury and error of law occurring at the trial. (Lombardi v. California St. Cable Ry. Co., 124 Cal. 311, 57 P. 66.)

Hawley & Hawley, for Respondent.

This court cannot review the questions whether appellant had a right to a fourth peremptory challenge because this matter was not presented to trial court for a ruling. (Forsythe v. Richardson, 1 Idaho 459.)

Appellant waived his right to a fourth peremptory challenge. ( Vance v. Richardson, 110 Cal. 414, 42 P. 909.)

Appellant waived any prejudice on account of remarks by counsel by not calling the court's attention to same. (29 Cyc. 777; Reynolds v. Metropolitan St. Ry. Co., 180 Mo.App. 138, 168 S.W. 221.)

The terms of a written instrument cannot be varied by oral testimony. (Jarrett v. Prosser, 23 Idaho 382, 130 P. 376; Newmyer v. Roush, 21 Idaho 106, Ann. Cas. 1913D, 433, 120 P. 464.)

This court cannot even consider the assignment that the court committed error in excluding evidence as to value, because appellant has not pointed out in the transcript the folio or folios where the alleged error was committed. (Rule 42.) The error, if any was committed, was immaterial, for the reason that the jury found for the defendant. (4 Corpus Juris, 969-971, 988; Work Bros. v. Kinney, 8 Idaho 771, 71 P. 477; Spongberg v. First Nat. Bank, 15 Idaho 671, 99 P. 712; Rosnagle v. Armstrong, 17 Idaho 246, 105 P. 216.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This action was brought by appellant to recover the sum of $ 5,170 on account of the alleged conversion by respondent of 51,700 shares of the capital stock of respondent corporation.

The facts as disclosed by the record, so far as material to the disposition of this case, are substantially as follows: On June 25, 1918, appellant was a part owner of an option to purchase certain mining claims, and on said date he entered into a contract with the remaining co-owners of the option for the formation of a corporation to develop and operate said claims, in which it was agreed that the option should be assigned to the corporation and that appellant should receive 60,000 shares of the capital stock of the corporation in full payment for his interest in the option. Pursuant to this contract, respondent corporation was thereafter organized, and on Nov. 1, 1918, the option was assigned to it by the holders thereof. Subsequent to the execution of the contract, appellant sold some of his stock, and certain deductions were made therefrom for various purposes which it is unnecessary to mention here.

Appellant contends that he is the owner of 51,700 shares which respondent refuses to deliver to him upon demand, but has converted to its own use and benefit, while respondent denies that appellant is the owner of any greater number than 25,850 shares, denies that any demand was made upon it by appellant for said stock and that it has converted the same.

Respondent has moved to strike appellant's brief from the files for the reason that the name of the judge who tried the case does not appear on the cover or first page of the brief, and the brief does not contain a statement of points and authorities as required by rule 42 of this court. The brief is subject to the criticisms directed against it by respondent, but we have concluded not to strike it.

A motion has also been made by respondent to strike appellant's bill of exceptions from the transcript, on the ground that it purports to set out an alleged colloquy between the court and counsel, but contains no ruling of the court to which an exception could be taken.

It appears that twelve jurors were called, examined upon their voir dire and passed for cause, and that appellant and respondent each exercised, alternately, three peremptory challenges, after each of which the jury was again filled. Counsel for appellant then stated that he would accept the jury, and the court announced that appellant waived his last and fourth peremptory, whereupon appellant's counsel approached the bench and stated that he did not waive his peremptory but accepted the jury. Respondent then exercised its fourth peremptory challenge, after which the jury was again filled. Thereupon appellant's counsel again approached the bench, stating that he was not satisfied, to which the judge replied that appellant had no further peremptory, and would have to keep the last juror called or disqualify him for cause, which appellant's counsel made no effort to do.

Counsel for appellant took no exception to the court's statement, no particular juror was challenged, and the court did not rule on the question, nor was anything before it upon which it might properly have ruled. As was held by the supreme court of Minnesota in Fink v. United American Fire Ins. Co., 114 Minn. 177, 130 N.W. 944: "A statement by the court that it was inclined to hold that the right of peremptory challenge of a juror did not exist was not a ruling on the question; no particular juror having been challenged."

A question not raised upon the trial (Miller v. Donovan, 11 Idaho 545, 83 P. 608), or as to which no objection was taken, cannot be urged on appeal. (Grant v. St. James Min. Co., 33 Idaho 221, 191 P. 359; Dahlstrom v. Walker, 33 Idaho 374, 194 P. 847.)

Nevertheless, in view of the fact that the question as to whether appellant was entitled to exercise a fourth peremptory challenge under the facts disclosed above has been briefed by both appellant and respondent and should be disposed of in order to settle the practice in future litigation, we will proceed to consider it.

C. S., sec. 6843, provides that: " . . . . The challenges are to individual jurors, and are either peremptory or for cause. Each party is entitled to four peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff."

In civil actions each party has the right to examine the whole twelve jurors, unless a jury consisting of less than twelve shall have been agreed upon in open court, before exercising his right of peremptory challenge as to any, and if some are excused for cause the deficiency must be supplied with other names, who may in like manner be examined until...

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