Oullahan v. Starbuck

Opinion — Field

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring.

It is stated by the appellant’s counsel that the only ground upon which the Court below based its action in granting the new trial, was a supposed error in its refusing to allow a peremptory challenge to a juror after he had been accepted, though not sworn. We do not doubt that such was the fact, but the record does not show this, and by its contents we must be governed. The record shows that the motion was also made on the further ground that the evidence was insufficient to justify the verdict, and does not indicate upon which of the two grounds the Court based its ruling. There was conflicting evidence on the trial, though the evidence which is stated in the record appears to fully support the verdict. It is not enough, however, to authorize any interference with the action of the Court below—either in granting or refusing a new trial: for *415alleged insufficiency of the evidence—that an Appellate Court, judging from the evidence as it is reduced to writing, would have come to a different conclusion. The Court before which the witnesses are examined is generally better qualified to determine the propriety of granting or refusing a new trial on this ground than any Appellate Court; and its action in this respect will not be disturbed except for the most cogent reasons.

It is unnecessary, therefore, to pass upon the question whether a right to challenge peremptorily a juror in a civil case under the statute exists until the jury are sworn.

Order affirmed.