Fredericks v. Judah

Paterson, J. — The transcript contains copies of affidavits filed by the plaintiff in the court below in support of his motion for a new trial, showing in substance that the defendants’ attorney persisted in arguing to the jury that the defendants had paid all of the taxes on the premises in controversy from 1861 to the time of the trial; that plaintiff had never paid any taxes thereon; that, as a fact, no evidence whatever was before the jury on the question of taxes, and that he also persisted in arguing to the jury that the County Court had decided that the plaintiff was the tenant of defendants, notwithstanding the fact that the court had ruled out all evidence relating thereto, and there was no evidence before [607]the jury on that subject. There is here no sufficient showing of irregularity or misconduct to warrant a new trial. We are not informed whether the court, on the objection of plaintiff, corrected the statement of defendants’ attorney. If the objection of plaintiff was well taken, we must presume that the court instructed the jury to disregard the assertions made by the defendants’ attorney. The affidavits of the jurors, in which it is stated that “ the principal grounds of the verdict were that the plaintiff proved no title by the deed; that defendants had three tax deeds; that plaintiff never paid any taxes; and that defendants paid all the taxes, and the County Court had decided that plaintiff was a tenant of defendants,”-—were inadmissible, and cannot now be considered. A juror cannot thus impeach his own verdict. There is but one ground upon which a verdict can be assailed in this way. It is expressed in the code. “ Whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.” (Code Civ. Proc., sec. 657, subd. 2; Polhemus v. Heiman, 50 Cal. 438; Turner v. Tuolumne W. Co., 25 Cal. 397.)

The leases were properly admitted in evidence. They were admissible to show the character of plaintiff’s possession,—whether for himself or as tenant of Ferguson. The plaintiff testified that he took possession in 1867, u to take care of the tract under the same old agreement.” The leases contained this provision: “And to pay the rent as above stated during the term; also the rent ■as above stated for such further term as the lessee may hold the same.” It was for the jury to determine whether plaintiff re-entered upon the premises under the terms of the lease, or under the parol agreement testified to by plaintiff.