Jennings v. Autry, 36276
| Decision Date | 20 September 1956 |
| Docket Number | No. 2,No. 36276,36276,2 |
| Parties | Mrs. A. St. Clair JENNINGS v. D. E. AUTRY |
| Court | Georgia Court of Appeals |
D. E. Autry brought an action against Mrs. Andrew St. Clair Jennings seeking an injunction, damages for timber cut, and to establish the land line between certain of their described properties. The trial court entered an order temporarily restraining the defendant's entry upon lands claimed by the plaintiff. Upon the trial, the jury returned a verdict finding in favor of the land line claimed by the plaintiff, and awarded him damages in a named amount. The defendant's motion for a new trial, based upon the usual general grounds and one special ground, was denied, and she assigns error upon that judgment. In the bill of exceptions tendered to the trial court, the defendant expressly abandons the general grounds and insists solely upon the one special ground. In that special ground, the defendant assigns error upon the denial of her motion for a new trial upon the ground that 'the defendant was not furnished with a full panel of qualified trial jurors from which to select a jury in the trial of the case in that one Hugh O. Bray was a member of the panel of 24 jurors furnished to the parties from which to strike a jury, and the said Hugh O. Bray was related to the plaintiff, D. E. Autry, in that the grandfather of Hugh O. Bray, Basley Parker, was a brother of the grandmother of D. E. Autry, Mrs. Lula Parker Mercer, making the juror, Hugh O. Bray, related within the sixth degree of consanguinity to the said Autry, plaintiff, a party interested in the result of said case, and there having been a defense filed in said case.
'Movant also avers as a part of this ground: (a) That * * * [the trial judge], prior to the striking of the jury in said case, asked the members of the panel if any of them were related by blood or marriage to either of the parties, naming them, and the said Hugh O. Bray did not indicate to the court that he was related to the plaintiff; (b) That immediately prior to the striking of the jury * * * [the] attorney for the plaintiff went to * * * the trial attorney for the defendant and told * * * [him] that his client, the plaintiff, thought that he might possibly be related to the juror, Hugh O. Bray; whereupon * * * [the attorneys for each party] went to the * * * [trial judge] and apprised him of this fact at which time the * * * [trial judge] again inquired of the jury panel whether any of them were related by blood or marriage to either of the parties, and the said Hugh O. Bray, juror, remained silent, and did not at that time know of his relationship to the plaintiff; (c) That movant's attorneys struck the said Hugh O. Bray from the panel, using one of her peremptory challenges, and used all six of her peremptory challenges allowed by law in the striking of said jury as did the plaintiff; (d) That neither movant, nor her attorney * * * [nor any member of the firm] * * * knew of the relationship of the juror, Hugh O. Bray, to the plaintiff, D. E. Autry, at the time of striking said jury, and did not discover said relationship until after the verdict was rendered, except the information furnished by the attorney for the plaintiff as set forth in subparagraph (b); (e) That movant and her counsel accepted as true that the juror, Hugh O. Bray, was not related to the plaintiff, when he failed to indicate such relationship after being asked twice, and they had no reason to know or suspect otherwise until after the verdict was rendered, having exercised ordinary diligence, to discover such disqualifying relationship by asking the trial court to qualify the jury a second time; (f) That the jury returned a verdict for the plaintiff in said case.'
An affidavit of a relative of D. E. Autry, demonstrating the relationship between Autry and the juror, Hugh O. Bray, is attached to and made a part of the motion for a new trial. Attached, also, is an affidavit of the defendant that before the trial of the case, at the time of the striking of the jury, and prior to the return of the verdict, she did not know of the relationship between the juror and the plaintiff. A third affidavit was also attached, signed by all members of the law firm representing the defendant, to the effect that at the time of striking the jury and prior to the return of the verdict they did not know of the relationship between the juror and the plaintiff, except that immediately prior to striking the jury, one of the counsel for the plaintiff had informed one of the counsel for the defendant that the plaintiff thought he might possibly be related to the juror, Hugh O. Bray.
Thomas A. Clark, Dykes, Dykes & Marshall, Americus, for plaintiff in error.
J. Frank Myers, Americus, for defendant in error.
Syllabus Opinion by the Court.
1. The great grandsons of a common ancestor are, under the civil law, related within the sixth degree. Smith v State, 62 Ga.App. 494, 8 S.E.2d 663, and cit.
2. As provided by Code, § 59-716, a juror, related by consanguinity or affinity to any party interested in the result of the case, within the sixth degree, as computed by the civil law, is disqualified to serve in the trial of the case.
3. Such disqualification of such a juror, however, will not result in the grant of a new trial unless it is shown that the movant was injured by such a disqualified juror's serving upon the jury or that his opponent was benefited thereby. Felker v. Johnson, 53 Ga.App. 390, 395, 186 S.E. 144, and cit.; Ethridge...
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Geiger v. State
...(36 AR 128). Therefore, we place our reliance upon such authorities as Kennedy v. State, 191 Ga. 22, 11 S.E.2d 179 and Jennings v. Autry, 94 Ga.App. 344, 94 S.E.2d 629 for our decision to sustain the trial judge in his overruling of this ground of the new trial motion. In the Kennedy case o......
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Patterson Bank v. Gunter
...Further than this they are not required to go. Due diligence requires no more than this. (Punctuation omitted; emphasis supplied.) Jennings v. Autry.4 The transcript shows that the trial court, in conducting voir dire, asked the prospective jurors whether any of them were related by blood o......
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Dunbar v. State, No. A05A0487.
...knew or had reason to suspect the disqualifying relationship, but they presented no evidence on the issue. See Jennings v. Autry, 94 Ga.App. 344(5), 94 S.E.2d 629 (1956) (after verdict, it is essential for the movant and his counsel to establish that neither knew or had reason to suspect a ......
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Glover v. Maddox, 37743
...making an intelligent selection. No question of lack of diligence or waiver is here presented, as it was in the case of Jennings v. Autry, 94 Ga.App. 344, 94 S.E.2d 629, where the defendant was apprised of a possible relative of the plaintiff being on the jury before trial and no investigat......