De Mateo v. Perano
| Decision Date | 17 November 1910 |
| Parties | DE MATEO et al. v. PERANO. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
Error to Circuit Court, Hudson County.
Action by Maud De Mateo and another against Marcus Perano. Judgment for plaintiffs, and defendant brings error. Affirmed.
Marshall Van Winkle, for plaintiff in error.
John J. Fallon, for defendants in error.
This is a writ of error to the circuit court of Hudson county removing a judgment entered on the verdict of a jury in favor of the plaintiff for $1,500. The suit was instituted by plaintiffs as husband and wife against the defendant as landlord, to recover for personal injuries sustained by the wife by falling on an icy stoop of the house wherein plaintiffs were residing as tenants. The declaration also contains a count for damages in favor of the husband. A rule to show cause was granted by the trial judge after judgment, reserving defendant's exceptions to the court's refusal to nonsuit, and to direct a verdict, and upon this writ of error the questions presented by these exceptions are the only questions open for consideration.
A preliminary question of procedure, however, was raised by a petition which defendant presented to the trial court, in which he alleged that George Walters, one of the panel of jurors who had heard the case, was the same person who under the name of George R. Walton had served as juror on the previous trial of the case; that this juror did not at any time declare his identity; and that the defendant only learned of the fact some time after the trial and after the granting of the rule to show cause. The inability, in a measure, of counsel for the defendant to discover this fact, was due to the incident that between the first and second trials of the cause, defendant had changed his counsel. The trial court upon the presentation of this petition, granted a rule to show cause, reserving exceptions, which, after argument, was discharged; and the defendant has assigned error upon this judicial action as follows: "That the circuit court refused to grant a new trial, although it appeared that George Walters who was sworn as a juror on said trial had also without knowledge of the defendant and his attorney, been sworn as a juror and participated under the name of George R. Walton in the first trial of the issue between the same parties on the same pleadings." The substantial ground of complaint under this assignment is that the trial court, for the reasons stated, refused to arrest the judgment and grant a new trial. The difficulty of acceding to this view is found in the fact that the refusal to grant a new trial is a matter resting entirely in the discretion of the trial court, and is not the subject of review on error. State Mutual Loan v. Williams, 75 Atl. 927.
It is also to be observed that the reason urged does not present a legal ground for arresting the judgment, since such procedure can only be invoked where some matter intrinsic in the record, and not aliunde the record, would render the judgment clearly erroneous and reversible. Tidd, vol. 2, p. 948; Farwell v. Smith, 16 N. J. Law, 133. The initial difficulty, however, which confronts us in the consideration of this contention is that the rule to show cause in question forms no part of the record brought here by writ of certiorari, or by any legal method, so as to become a part of the record before us, upon which error can be legally assigned; and it cannot, therefore, enter into our consideration of the case. Quite aside from this objection is the fundamental barrier presented by the rule that the disqualification of a juror is a matter for challenge; and that the failure to challenge is a waiver of the right. This rule has been applied where the disqualification of the juror was not actually known to the parties at the time. Dickerson v. North Jersey St. Ry. Co., 68 N. J. Law, 45, 52 Atl. 214; State v. Lang, 75 N. J. Law, 1, 66 Atl. 942, affirmed by this court, 75 N. J. Law, 502, 68 Atl. 210.
The case itself presents these facts: Plaintiff and her husband, as tenants, resided...
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Nelson v. E. Air Lines, Inc.
...reach of hostile legislation."— reasoning which applies equally to the Supreme Court. So, too, Mr. Justice Minturn in DeMateo v. Perano, 80 N.J.L. 437, 78 A. 162, 163, "* * * the refusal to grant a new trial is a matter resting entirely in the discretion of the trial court, and is not the s......
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Skupienski v. Maly
...been justified in returning a verdict for plaintiff. Turzay v. Berkowitz, 125 N.J.L. 61, 14 A.2d 265 (Sup.Ct.1940); DeMateo v. Perano, 80 N.J.L. 437, 78 A. 162 (E. & A.1910); and see, generally, Annotation, 26 A.L.R.2d 610 (1952). It is not logical to deny recovery simply because no drainag......
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Toole v. Paurine Parisian Dye House
... ... 414; ... Watkins v. Goodall, 138 Mass. 533; De Wall v ... City of Sioux City, 181 Iowa, 333, 164 N.W. 640; ... DeMateo v. Perano, 80 ... [39 P.2d 968] ... N. J. Law, 437, 78 A. 162; Williams v. City of New ... York, 214 N.Y. 259, 108 N.E. 448, 449; Evans v. City ... of ... ...
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Shore v. Shore, A--57
...51 N.J.L. (332) 333, 17 A. 836, 19 A. 538; State Mutual Bldg. & Loan Ass'n v. Williams, 78 N.J.L. 720, 723, 75 A. 927; DeMateo v. Perano, 80 N.J.L. 437, 438, 78 A. 162.' It is further fortified in Strong v. Strong, 138 N.J.Eq. 302, 47 A.2d 427 (E. & A.1946), where it was held an application......