Oliver v. Herron

CourtSupreme Court of Alabama
Writing for the CourtCOLEMAN, J.
Citation17 So. 387,106 Ala. 639
PartiesOLIVER ET AL. v. HERRON.
Decision Date09 April 1895

17 So. 387

106 Ala. 639

OLIVER ET AL.
v.
HERRON.

Supreme Court of Alabama

April 9, 1895


Appeal from circuit court, Elmore county; W. D. Denson, Judge.

Action of ejectment by Daniel Herron against Martha B. Oliver and another. Judgment for plaintiff. From an order overruling a motion for a new trial, defendants appeal. Affirmed.

Thos. L. Bulger and W. P. Gaddis, for appellants.

W. A. Gunter, for appellee.

COLEMAN, J.

The appeal is prosecuted from the judgment of the trial court overruling a motion for a new trial. This is the only assignment of error. The bill of exceptions does not purport to set out all, or substantially all, the evidence before the court at the hearing of the motion, and for this reason, if there were no other, we would be compelled to affirm the judgment. We are of opinion, however, that upon the showing made, as contained in the record, the court did not err. The only ground for the motion worthy of consideration is that one of the jurors who tried the case was non compos, and that movants have not had a jury trial as guarantied by the constitution. We will not undertake to consider the conflicting testimony on this point. It is enough to say that movants by legal testimony have not clearly shown the incompetency of the juror during the trial, whatever may have been his subsequent condition. We rest our conclusion upon another principle. The right of jury trial is a personal right, of which no person can be deprived against his will, but there is neither constitutional nor statutory provision which prohibits him from waiving his constitutional privilege in civil actions. Movants had personal notice of the condition of the juror during the trial. If they intended to raise an objection to his competency or qualifications, if was their bounden duty to have done so at the time. Having concluded the case in the face of such notice, and taken the chances of a verdict in their favor, they will be conclusively held to have waived the objection to the juror. Affirmed.

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21 practice notes
  • Brackin v. State, 6 Div. 1.
    • United States
    • Alabama Court of Appeals
    • June 30, 1943
    ...a struck jury or of challenging any of the members thereof. This was a conclusive waiver of the objection to such juror. Oliver v. Herron, 106 Ala. 639, 17 So. 387. (c) This was a prosecution by the State. A city police officer is not thus, ipso facto, disqualified to serve upon the jury in......
  • Henry v. First Exch. Bank (In re First Exch. Bank), 1111353.
    • United States
    • Supreme Court of Alabama
    • December 6, 2013
    ...nor statutory provision which prohibits him from waiving his constitutional privilege in civil actions.’ ” (quoting Oliver v. Herron, 106 Ala. 639, 640, 17 So. 387, 387 (1894) )). See also Shoney's LLC v. MAC East, LLC, 27 So.3d 1216, 1222 (Ala.2009) (“The ban on impairing the obligations o......
  • General Motors Corp. v. Hopper
    • United States
    • Supreme Court of Alabama
    • July 12, 1996
    ...Lyman v. State, 45 Ala. 72 (1871); Batson v. State, 216 Ala. 275, 113 So. 300 (1927). The Court Page 1380 quoted from Oliver v. Herron, 106 Ala. 639, 17 So. 387 (1895), as " '... The right of jury trial is a personal right, of which no person can be deprived against his will, but there is n......
  • CONFERENCE AMERICA v. TELECOM. CO-OP,
    • United States
    • Supreme Court of Alabama
    • November 21, 2003
    ...failure to respond; thus, the trial court did not err in denying the JNOV/new trial motion." 565 So.2d at 185. See also Oliver v. Herron, 106 Ala. 639, 17 So. 387 (1905); Alabama Lumber Co. v. Cross, 152 Ala. 562, 44 So. 563 (1907); Jones v. Coley, 219 Ala. 23, 121 So. 24 (1929); Hood v. Ke......
  • Request a trial to view additional results
21 cases
  • Brackin v. State, 6 Div. 1.
    • United States
    • Alabama Court of Appeals
    • June 30, 1943
    ...a struck jury or of challenging any of the members thereof. This was a conclusive waiver of the objection to such juror. Oliver v. Herron, 106 Ala. 639, 17 So. 387. (c) This was a prosecution by the State. A city police officer is not thus, ipso facto, disqualified to serve upon the jury in......
  • Henry v. First Exch. Bank (In re First Exch. Bank), 1111353.
    • United States
    • Supreme Court of Alabama
    • December 6, 2013
    ...nor statutory provision which prohibits him from waiving his constitutional privilege in civil actions.’ ” (quoting Oliver v. Herron, 106 Ala. 639, 640, 17 So. 387, 387 (1894) )). See also Shoney's LLC v. MAC East, LLC, 27 So.3d 1216, 1222 (Ala.2009) (“The ban on impairing the obligations o......
  • General Motors Corp. v. Hopper
    • United States
    • Supreme Court of Alabama
    • July 12, 1996
    ...Lyman v. State, 45 Ala. 72 (1871); Batson v. State, 216 Ala. 275, 113 So. 300 (1927). The Court Page 1380 quoted from Oliver v. Herron, 106 Ala. 639, 17 So. 387 (1895), as " '... The right of jury trial is a personal right, of which no person can be deprived against his will, but there is n......
  • CONFERENCE AMERICA v. TELECOM. CO-OP,
    • United States
    • Supreme Court of Alabama
    • November 21, 2003
    ...failure to respond; thus, the trial court did not err in denying the JNOV/new trial motion." 565 So.2d at 185. See also Oliver v. Herron, 106 Ala. 639, 17 So. 387 (1905); Alabama Lumber Co. v. Cross, 152 Ala. 562, 44 So. 563 (1907); Jones v. Coley, 219 Ala. 23, 121 So. 24 (1929); Hood v. Ke......
  • Request a trial to view additional results

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