Phares v. Krhut

• Decision Date: 05 July 1907
• Docket Number: 15,104
• Parties: JOHN W. PHARES v. CIRYLL M. KRHUT et al
• Court: Kansas Supreme Court

91 P. 52

76 Kan. 238

JOHN W. PHARES v. CIRYLL M. KRHUT et al

No. 15,104

Supreme Court of Kansas

July 5, 1907

Decided July, 1907.

Error from Trego district court; JAMES H. REEDER, judge.

STATEMENT.

DEFENDANTS in error brought this action against John W. Phares to recover $ 2000 damages for fraud and misrepresentation claiming that he had acted as their agent in the sale of a section of land and fraudulently misrepresented to them that he had sold it for the sum of $ 8000 when in fact he received the sum of $ 9600, and had retained the difference as well as an agent's commission. Upon issues joined the case was tried to a jury and judgment rendered in favor of defendant. The trial court allowed a motion for a new trial and set aside the verdict, and it is to reverse that ruling of the court that plaintiff in error brings this proceeding.

At the time the case was tried John W. Phares was the county clerk of Trego county, and had filled that position for a number of years. The motion for a new trial included all the statutory grounds, but the ground relied upon was "misconduct of the prevailing party." Defendants in error charged that plaintiff in error, while county clerk, corruptly placed or caused to be placed in the jury-box six names not selected by the township trustees for jury service, and corruptly altered the jury-lists in his official custody in order to conceal the unauthorized placing of the names in the jury-box, and corruptly withdrew from the jury-box prior to the drawing of the jury in February, 1906, nineteen names; that all of these acts were for the purpose of securing the drawing of a jury favorable to himself in this and other jury cases pending in the court in which he was a party.

In support of the motion the testimony of a number of township trustees, and also other oral testimony and affidavits, was introduced, from which it appears that after the trustee of Collyer township had returned the 1905 jury-list from that township to plaintiff in error, who was then county clerk the list was changed by some person without authority by the addition of eight names. It also appears from the same kind of testimony that the names of seven persons were added to the list of those eligible as jurors from Ogallah township after the trustee had made his return. Among these added names was that of J. L. Arnold, who had not been selected for jury service by the trustee. The assessment roll for Riverside township showed the same kind of manipulation eleven names having been added to the five names returned by the trustee.

The October term of the district court was the first term after the names were returned by the trustees. All the names were placed in the jury-box in September, 1905, in the presence of two justices and the sheriff, and twenty-four names were drawn from the jury-box for service as jurors for the October term. The next term of court was the March, 1906, term, when the cause was tried. On February 3, 1906, in the presence of the same justices and sheriff, twenty-four names were drawn from the jury-box for service at the March term. Among the names drawn at this time were J. L. Arnold, Otto Colberg, J. Walberg, E. Pugh, T. W. Johnson and S. Erickson, persons whose names were among those added to the list without the authority of the trustees. After this drawing, according to the testimony of the justices and the sheriff, the jury-box was found to be empty, although by adding the total number of names drawn out for the two terms of court there were nineteen names unaccounted for which should have remained in the box when the drawing closed. The officers who were present also testified that the slips containing the names drawn at this time were not the same slips which were placed in the box in their presence in September, 1905, but were made upon a different kind of paper. Among those who served as jurors on the trial were three from Riverside township who were not selected by the trustee of that township and whose names were added to the jury-list without his authority or knowledge.

F. F. Ziehman, who was the trustee of Collyer township, testified that he returned in his own handwriting the names of sixteen persons as jurors, and that there had been eight names added which were not in his handwriting, and that he had not authorized any one to add any names to the roll. He further testified that while the motion for the new trial was pending plaintiff in error sent for him to come to the county clerk's office and showed him the assessment roll with the additional names and said that he wanted him to "recognize this list." The witness informed him that he could not do that. Continuing, the witness said: "He [plaintiff in error] said if I could not recognize this as my list he would make out a new book, if I would recognize it."

J. C. Buchanan, trustee of Ogallah township, testified that seven names had been added to the list after he had returned the names to the county clerk; that he had a conversation with plaintiff in error while the motion for a new trial was pending in which plaintiff in error asked him if he had had any talk with the attorney for defendants in error, and, when informed by the witness to the contrary, said to him: "'If he comes to you for anything, don't tell him anything until you come on the stand.' I says, 'What do you want?' And he says, 'I don't know; it is something about the jury.'" He also testified that he had a conversation with plaintiff in error when the motion for a new trial was pending, as follows:

"He asked me if I had made an affidavit, and I told him I had not, and he asked me if I would make an affidavit to the effect that I did not know how many jurors I reported, and I told him I would not--I could not."

E. B. Hobbick, township assessor of Wa Keeney township in 1905, also testified that he returned to the county clerk the names of six persons eligible as jurors from the city of Wa Keeney, and that the assessment roll of the township showed nine names added without his authority.

Defendants in error were residents of Collyer township, which was one of the most populous townships in the county, and its trustee selected sixteen persons for jury service. It appears that no person from this township happened to be drawn or summoned on the jury for the March term.

J. L. Arnold, whose name was added to the jury-list from Ogallah township without the authority of the trustee, was a tenant on the farm of plaintiff in error.

Charles Ridgway, who was drawn as a juror, and whose name was one of those added to the list, but who did not serve, testified that before the trial took place he had a conversation with plaintiff in error in which the latter said: "'I think my land case will be tried, and if it is, and you sit on the jury, I wish you would do me all the good you can, because I am right.'"

The motion for a new trial was also supported by affidavits of defendants in error and their attorney showing that they had no knowledge or notice of the irregularities and misconduct with reference to the drawing of the jury at the time the case was tried, nor until about the time the motion for a new trial was filed. There was further testimony showing that plaintiff in error was a party in two other causes pending at the same term of court which were liable to be tried by juries and in which considerable amounts were involved.

There was no evidence offered by plaintiff in error in rebuttal.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEW TRIAL--Misconduct of the Prevailing Party. "Misconduct of the prevailing party" as ground for a new trial is not confined to something occurring at the trial. It may...