Moss v. Appanoose Cnty.

Decision Date14 December 1899
Citation81 N.W. 159,109 Iowa 671
CourtIowa Supreme Court


Appeal from district court, Appanoose county; Robert Sloan, Judge.

Action at law to recover for personal injuries alleged to have been caused by negligence on the part of the defendant in not properly constructing and maintaining a county bridge. There was a trial by jury, and a verdict for the defendant. The plaintiff filed a motion for a new trial, which was overruled, judgment was rendered against her, and she appeals. Affirmed.Geo. D. Porter, for appellant.

J. M. Wilson, Co. Atty., for appellee.


The only question presented for our determination relates to the drawing of talesmen for the jury. The plaintiff contends that they were not selected as required by section 349 of the Code, and alleges that the clerk drew from the talesmen box the names of more than 100 persons without announcing the names drawn, and selected persons who were in business near the court room; that none of the ballots were folded; that the attorney for the defense was present, and knew in advance who were selected; that an attorney for the plaintiff protested to the clerk in regard to the manner of the drawing, but that the clerk answered that “many of those drawn were working in the coal banks and other places, and it would take some time to get them here.” The plaintiff, in support of her claims, filed affidavits which tend to show that the claims are well founded. They are resisted by counter affidavits, which tend to show that the drawing was under the direction of the court and regular. The statute requires that the drawing be in the presence of the court, and we must presume that it was so made. The facts involved in it, therefore, should have been shown by bill of exceptions, and not by affidavits. State v. La Grange, 99 Iowa, 10, 68 N. W. 557. No excuse for failure to show the facts by bill of exception appears. Moreover, objections to the method of drawing should have been made to the court. If the affidavits be considered, due weight must be given to the counter affidavits, and, when that is done, a material violation of the law in the matter of drawing the talesmen is not shown. See State v. McIntosh (Iowa) 80 N. W. 349;State v. Minor. 106 Iowa, 642, 77 N. W. 330. The judgment of the district court is therefore affirmed.

GRANGER, J., not sitting.

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