Jewell v. Jewell

• Decision Date: 11 February 1892
• Citation: 24 A. 858,84 Me. 304
• Parties: JEWELL v. JEWELL.
• Court: Maine Supreme Court

24 A. 858

84 Me. 304

JEWELL

v. JEWELL.

Supreme Judicial Court of Maine.

Feb. 11, 1892.

(Official.)

Report from supreme judicial court. Somerset county.

Action by Mary Jewell against George F. Jewell. There was a verdict for defendant, which plaintiff moved to set aside. Motion sustained.

J Wright, for plaintiff.

Walton & Walton, for defendant.

WHITEHOUSE, J. In an action against, her son for the alleged failure to perforin his contract for her support, the plaintiff had a verdict against her, and moved to set it aside on the ground that one of the jurors who rendered the verdict was disqualified by his relationship to the parties.

It appears that the juror's mother and the plaintiff's mother were sisters. The juror was therefore related to the plaintiff within the fourth degree, and to the defendant within the fifth degree, according to the rules of the civil law.

In bis classification of challenges to the polls, Lord Coke says of the challenge propter affectum that the right exists, "if the juror be of blood or kindred to either partie,consanguiueus, which is compounded ex con and sanguine, quasi eodem sanguine natus, as it were issued from the same blood; and this is a principal challenge, for that the law presumeth that one kinsman doth favor another before a stranger, and how far remote soever he is of kindred, yet the challenge is good. And if the plaintiff challenge a juror for kindred to the defendant, it is no counter-plea to say that he is of kindred also to the plaintife, though he be in nearer degree; for the words of the venire facias forbiddeth the juror to be of kindred to either partie." Co. Litt. 157, (a.)

But there are several provisions of our statute touching this subject. Bule 22, § 6, c. 1, Rev. St., provides that, "when a person is required to be disinterested or indifferent in a matter in which others are interested, a relationship by consanguinity or affinity within the sixth degree according to the civil law, or within the degree of second cousin inclusive, except by written consent of the parties, will disqualify."

Section 80, c. 82, Rev. St., declares that "the court, on motion of either party in a suit, may examine, on oath, any person called as a juror therein, whether he is related to either party, has given or formed an opinion, or is sensible of any bias, prejudice, or particular interest in the cause;" and if he does not stand indifferent he may be set aside. And section 88 of the same chapter provides that, "if any party knows any objection to a juror in season to propose it before trial, and omits so to do, he shall not afterwards make it, unless by leave of court for special reasons."

In the case at bar the court informed the jury before the commencement of the trial who the parties to the suit were, and explained that, if any member of the panel was related to the parties within the degree of second cousin, he would be disqualified to sit, and must step aside. But it appears from the admissions in the report that neither the plaintiff nor the defendant had any knowledge that this kinsman was a member of the panel until after the verdict; and the juror testified that be bad not seen the Jewells since his childhood, and did not recognize the parties in the court room, and hence was not made aware of his relationship until after the trial had concluded.

In Woodward v. Dean, 113 Mass. 297, it appeared that Henry Macomber, one of the jurors, was the husband of the plaintiff's niece, but that the defendant was personally unacquainted with Macomber, and did not know that he was on the panel until after the trial. It further appeared that the defendant had not availed himself of the opportunity offered by the Massachusetts statute (in substance the same as section 80, c. 82, Rev. St., supra) to have the members of the panel examined before the trial respecting their relationship to the parties, and the court said: "A party against whom a verdict has been rendered, who has not seasonably availed...