Hurtert v. Weines , 27 Iowa 134 ( 1869 )

Dillon, Ch. J.

1. Slander: evidence.In his written argument the appellant’s upon the instructions is thus put:

“ The testimony shows that the only party in whose presence the words were spoken is a foreigner, and cannot understand the English language. It does not appear that any damage was caused to plaintiff, because it is not shown that the witness understood the words used. Appellee well knew that defendant spoke in German when addressing the witness. If so, then plaintiff should have so alleged in his petition.”

W e remark, first, that the testimony, while it shows that "Wearich (the only witness) was present, does not show that the words were spoken in his presence alone.

We observe, second, that it does appear that the witness did understand the words. He distinctly so testifies.

Not resting upon the ground on which the court refused the instructions, the other ground of objection, viz : that it ought to have been alleged that the words were spoken in German, is only made out by inference, and is too unsubstantial' in its character to justify a reversal of the judgment under the circumstances appearing in this record.

%‘iwcy™ TKIAL: II. There was no error in the action of the court in refusing a new trial on the ground that a juror had sat at a previous trial. There was no showing negativing knowledge of this fact on the part of the defendant’s attorneys (Riley v. Monohan, 26 Iowa, 507), and no statement that any inquiries whatever had been made of the juror before he was impaneled and sworn. Besides, the record entry states “ that both parties consented to the jury.”

The affidavit of the defendant does not negative the presumptive waiver of the objection, nor show sufficient diligence in impaneling the jury to make such objection available after verdict as the basis of a right to a new trial. Stewart v. Eubank, 3 Iowa, 191, 194, and cases cited ; Riley v. Monohan, supra.

Affirmed.