Johnson v. City of Waterloo

• Decision Date: 13 January 1909
• Citation: 140 Iowa 670,119 N.W. 70
• Parties: JOHNSON v. CITY OF WATERLOO.
• Court: Iowa Supreme Court

140 Iowa 670

119 N.W. 70

JOHNSON

v.CITY OF WATERLOO.

Supreme Court of Iowa.

Jan. 13, 1909.

Appeal from District Court, Black Hawk County; Charles E. Ransier, Judge.

Action for severance of territory from the corporate limits of the city of Waterloo resulted in judgment as prayed.The defendant appeals.Affirmed.B. F. Swisher and J. E. Williams, for appellant.

Mears & Lovejoy, for appellee.

LADD, J.

The jury decided that the territory of 280 acres described in the petition should be severed from the city of Waterloo, and in the appeal from judgment to that effect but three errors are assigned.As the land was used for agricultural purposes, it was not subject to assessment for taxation for municipal expenses.On voir dire, four members of the panel answered that they were resident taxpayers of the defendant city and were excused upon challenge of plaintiff for this reason: Had the issue been such that its determination might have resulted in an increase or diminution of taxation, the ruling would no longer be the subject of controversy in this state.Davenport Gaslight & Coke Co. v. City of Davenport, 13 Iowa, 229;Dively v. City of Cedar Falls, 21 Iowa, 565;Cramer v. City of Burlington, 42 Iowa, 315;Hollenbeck v. City of Marshalltown, 62 Iowa, 21, 17 N. W. 155;McGinty v. City of Keokuk, 66 Iowa, 725, 24 N. W. 506;Kendall v. City of Albia, 73 Iowa, 241, 34 N. W. 833;Cason v. City of Ottumwa, 102 Iowa, 99, 71 N. W. 192.The mere circumstance of living within the corporate limits is not cause for challenge, for whether farm land be included or excluded save for good reasons ordinarily would be a matter of indifference to jurymen, regardless of their place of residence.For all that appears, however, there was no prejudice.The defendant had no right to a trial before any particular juror or jury.All it could insist upon was a competent and impartial jury, and, as the record does not affirmatively show that it exhausted the peremptory challenges to which it was entitled, the jurors before whom the cause was tried are presumed to have been acceptable to it.Haggard v. Patterson, 107 Iowa, 417, 78 N. W. 53.The erroneous overruling of a challenge for cause may result in the retention of an objectionable juror.State v. John, 124 Iowa, 230, 100 N. W. 193.But this will, rarely, if ever, happen because of the rejection of a competent juror, and the courts which treat such ruling, when erroneous, as reversible error, do so on the ground that the litigant had the right to a trial before the particular juror.Monk v. State, 27 Tex. App. 450, 11 S. W. 460;Hildreth v. Troy, 101 N. Y. 234, 4 N. E. 559, 54 Am. Rep. 686;Mooney v. People, 7 Colo. 218, 3 Pac. 235.In Wisehart v. Dietz, 67 Iowa, 121, 24 N. W. 752, andGeiger v. Payne, 102 Iowa, 581, 69 N. W. 554, 71 N. W. 571, sustaining challenges for cause was held to be so largely discretionary that this court would not interfere on the showing made.In states, where, as in this, the right to trial before any particular juror or jury is denied, the ruling by which a juror is excused without good cause is not reviewable on appeal, unless it also is made to appear from the record that this has resulted in the trial of the issues before a partial or incompetent jury.State v. Carries, 39 La. Ann. 931, 3 South. 56;State v. Kluseman, 53 Minn. 541, 55 N. W. 741;Omaha, etc., R. Co. v. Cook, 37 Neb. 435, 55 N. W. 943;State v. Ching Ling, 16 Or. 419, 18 Pac. 844;Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755;Southern Pac. Co. v. Rauh, 49 Fed. 696, 1 C. C. A. 416, 7 U. S. App. 84.SeeWooten v. State, 99 Tenn. 198, 41 S. W. 815;Woolfolk v. State, 85 Ga. 90, 11 S. E. 820.The theory of these decisions is that, though a qualified juror be excused, another equally competent and fair minded will be selected in his stead, and, if a competent and impartial jury is finally secured before whom the cause is...