Wagoner v. Iaeger.
| Decision Date | 09 March 1901 |
| Citation | 49 W.Va. 61 |
| Parties | Wagoner v. Iaeger. |
| Court | West Virginia Supreme Court |
1. Appeal Revieiv Challenge to Juror.
The verdict of a jury will not be set aside because of grounds of challenge against a juror which might have bejn Known to the challenger or his counsel by the exercise of ordinary diligence; a failure to exercise such ordinary diligence being deemed equivalent to a waiver of the cause of challenge, (p. 62).
2. Cross-Examination Claimant of Property.
If the circuit court, by reason of a too rigid adherence to the technical rules of procedure, excludes the proper cross-eaxinar tion of a claimant of property in controversy from the consideration of the jury, the judgment will be reversed, the verdict set aside, and a new trial awarded, unless the evidence, taken as a whole, including the excluded evidence, plainly and decidedly preponderates in favor of the verdict and does not involve the credibility of contradicting witnesses, (pp. 62-64).
Error to Circuit Court, McDowell County.
Action by W. G. W. Iaeger against Edward Rice and another. J. M. Wagoner filed a petition claiming ownership of property levied on. Judgment for claimant and Iaeger brings error.
Reversed.
Flournoy, Price & Smith, for plaintiff in error.
Pucker & Keller and D. F. StrotHer, for defendant in error.
J. M. Wagoner filed his petition in the circuit court of McDowell County claiming the ownership of certain lumber levied on by W. G. W. Iaeger, as the property of Edward Rice and A. B. Rice, partners.
On issue made up as to the ownership of the property a jury found a verdict in favor of Wagoner and the court rendered its judgment accordingly. Iaeger now claims the court erred in not sustaining his motion to set aside the verdict for two reasons. 1st. Because one of the jurors was a defendant in a certain ejectment suit brought by him in the United States Circuit Court which was still pending and undecided, and which fact was unknown to him until after the verdict was rendered. 2d, Because of evidence improperly excluded from the jury to the court.
As to the first of these errors, it is sufficient to say that plaintiff by the exercise of ordinary diligence could certainly have ascertained that the juror was a defendant in an ejectment suit brought by himself, as well before the trial as after it. He had all the means of information in his power, and it is not a violent presumption that a plaintiff does know the names of the persons against whom his suits pending. Jaeger does not state in his affidavit that he could not have known by ordinary diligence that the juror complained of was a defendant in such ejectment suit, but simply states that he did not know that he was until after the trial. This renders the affidavit wholly insufficient. For it must appear from the affidavit or the circumstances of the case that a litigant objecting to the qualification of a juror because of personal enmity from any cause exercised reasonable diligence to ascertain such disqualification prior to the trial, 1 Thompson on Trials, 120. Also that such disqualification was unknown both to himself and counsel before the juror was accepted, and used in the trial.
As to the second ground, it appears from the record that while Wagoner was on the witness stand being examined in his own behalf and had been examined in chief and cross examined on re-examination, his testimony in part was as follows, by question and answer:
Q. "Who paid for that timber out of which that lumber was manufactured that was attached in this case?"
A. "I paid for it, "
Q. "How did you pay for it?"
A. "In checks and money."
On re-cross examination his testimony in part was as follows:
Q. "Who deposited the money at Bluefield?"
A. "I deposited it."
Q. "In your own name?"
A. "Yes, sir."
Q. "Did you deposit in money?"
A. "I deposited in money, or in drafts, or in checks."
Q. "Whose drafts were they?"
A. "Well, I would have to go over my list to tell you." Q. "Had you any of Rice Brothers' drafts?" A. "Yes, sir." Q. "How many?"
A. "I had one of two hundred and fifty dollars." Q. "Any more?"
A.
Plaintiff by counsel objects, and here moves to exclude the foregoing three questions, and the answers thereto, as being improper on re-cross examination. Motion is sustained. Exception,
This testimony was admissible as tending to show that Rice Brothers had furnished the money to pay for the timber from which the lumber in controversy was manfaclured. The only objection to its admission seems to be because the inquiries had not been made before. This objection coming from the claimant of the lumber as to his own testimony was not only technical, but extremely finical, and would rather seem to indicate a disposition to prevent the court from knowing the truth as to...
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