Brooke v. Pickett , 21 Ga. App. 422 ( 1917 )

Harwell, J.

The juror Dinsmore was not disqualified by reason of the fact that his wife was'related as third cousin to the wife of W. J. Webb, one of the defendants. Central R. Co. v. Roberts, 91 Ga. 517 (18 S. E. 315). The juror Martin was disqualified by reason of the relationship of his wife within the prohibited degrees to W. J. Webb. Ledford v. State, 75 Ga. 856. The defendant in error, however, insists that this is not a ground for new trial in the instant case, because of the fact that the juror Martin was not related to an opposite party, but was related to a codefendant of the unsuccessful party, J. P. Brooke; and her counsel cites the following cases in support of her contention: Wright v. Smith, 104 Ga. 174 (30 S. E. 651); Downing v. State, 114 Ga. 30 (39 S. E. 927). We recognize that the appellate courts of this State, have laid down the rule that relationship of a juror within the prohibited degrees to one of the parties will not be cause for the grant of a new trial, where the relationship is to the unsuccessful party; and if, in the instant case, the juror Martin were related to the plaintiff in error Brooke, it would come within the rule stated by these decisions, and would not be cause for the grant of a new trial. The plaintiff in error insists, however, that this rule does not apply in the instant case, for the reason that the interest of W. J. Webb in the result of the suit (that is, as to whether Brooke shall prevail on his plea) is not in harmony with, but antagonistic to, Brooke’s defense For, being sureties, if Brooke prevails, W. J. Webb will have the whole debt to pay, if it can not be made out of the principal; if Brooke loses, Webb will be entitled to contribution from him.

The question is not without some difficulty, and we find no case exactly in point; but we think, upon principle, that the relationship of the juror in the instant case to a cosurety of the plaintiff in error does afford cause for the grant of a new trial. Brooke was an accommodation indorser, and is to be considered merely as a surety. Civil Code (1910), § 3541. He is cosurety with TV"; J. Webb. The verdict being against both of these parties as sureties, W. J. Webb is entitled to contribution from Brooke in the payment of this judgment, if it can not be made out of the principal. Civil Code (1910), § 3564. It is to the interest of W.' J. Webb that a verdict should be rendered against Brooke. Otherwise, upon failure of the principal to pay the debt, the entire burden of the payment will fall upon Webb. Hence the interest of the related juror would be to hold Brooke, the plaintiff in error, liable as a surety in order that the right of contribution might exist to his cousin. We do not mean to intimate that any such motive actuated the juror in rendering this verdict. • It may be that he was perfectly impartial and decided the case without any regard to his relationship. But, as was said in the case of Temples v. Central of Ga. Ry. Co., 15 Ga. App. 122 (82 S. E. 777), “the ruling which fixes the disqualification of a juror and debars one from serving who is related to either of the parties within the ninth degree is itself not based upon the actuality of interest, but upon the probability of its existence.” For the reasons stated we think that the juror Martin was disqualified, and that a new trial should be granted. It is not necessary to deal with the other grounds of the motion, since the errors therein complained of, if there be any, will not likely occur upon another trial of the case.

Judgment reversed,.

Broyles, P. J., and Bloodworth, J., concur.