Opinion
No. 6,610.
Submitted January 23, 1930.
Decided February 5, 1930.
Landlord and Tenant — Action for Rent — Evidence — Admissibility — Continuances — When Properly Refused — Jury Challenge to Panel — When Overruling of Challenge not Abuse of Discretion.
Jury — Supplementing of Regular Panel from Jury-box No. 3 Permissible at Time When Jury not Being Selected. 1. The supplementing of the regular panel by drawings from jury-box No. 3, at a time when no jury is being selected, is under certain circumstances permissible, and the jurors so drawn are qualified for the trial of future cases.
Same — When Jury Panel not Open to Challenge Where Because of Granting of Excuses All Jurors Remaining were from Same Locality. 2. Where during the close of a four months' jury term, of the 150 jurymen drawn for service, but twenty-one remained for the trial of a cause, twenty of whom were residents of the county seat, the other receiving his mail there, but no trouble was experienced in getting a jury, and it appeared by stipulation that all jurors excused were regularly excused, it must be presumed, nothing appearing to the contrary, that official duty was properly performed and that the situation complained of by appellant, to-wit, that he was compelled to try his case before jurors from one locality, was brought about by accident and not due to design or abuse of discretion.
Same — Litigants not Entitled to have Causes Tried Before Particular Jury. 3. Litigants are not entitled to have their causes tried before particular jurors or jurors selected from a particular panel drawn at a particular time, their rights in this respect being sufficiently protected if a fair and impartial jury was drawn in the manner provided by law.
Trial — Continuances — Absence of Witness — When Refusal not Error. 4. A continuance need not be granted for the purpose of obtaining evidence which would be merely cumulative; nor is it abuse of discretion to refuse a motion for continuance to secure the attendance of an absenst witness where it is apparent that movant neither showed diligence in securing his attendance nor that it was probable that the witness could be produced at a later date.
Landlord and Tenant — Action for Rent — Documentary Evidence — Admissibility. 5. In an action for rent against the original lessee of a building who contended that he had subleased to another with plaintiff's consent, the recorded lease from the lessee to his sublessee and a chattel mortgage given by the latter to a third party on goods used in the building by the sublessee were admissible in corroboration of defendant's contention.
Same — Evidence — Where Plaintiff Introduces Portion of Record in Abatement Proceeding, Defendant may Offer Entire Files for Certain Purpose. 6. Where plaintiff landlord introduced in evidence a portion of the record in an action against defendant and his sublessee to abate the rented premises for violation of the liquor laws, for a certain purpose, defendant was entitled to offer the entire files in that proceeding for the purpose of showing that he was not a party to and took no part in it. (Sec. 10515, Rev. Codes 1921.)
Appeal from District Court, Fergus County; Edgar J. Baker, Judge.
Mr. E.K. Cheadle, for Appellant, submitted a brief and argued the cause orally.
Mr. Ralph J. Anderson, for Respondent, submitted a brief and argued the cause orally.
Charles Lehman Co., a corporation, sued to recover from H.P. Skadan and Fred R. Munger an amount alleged to be due as rental on a building in Lewistown. Skadan was not served with process, and did not appear; Munger appeared by general denial.
The cause was set for trial on June 10, 1929, and thereupon plaintiff moved the vacation of the setting on the ground that no proper jury panel was in attendance; this motion being denied, plaintiff moved for a continuance on the ground of the absence of a material witness, and, on the overruling of this motion, challenged the array; the challenge was denied, and on June 17 the cause was tried to a jury selected from the jurors in attendance. Plaintiff has appealed from the judgment on verdict in favor of defendant Munger. The questions hereinafter discussed are raised by proper assignments of error.
1. The jury term began on February 14, 1929. The jurors in attendance June 17 were those remaining after the court had, from time to time, excused jurors from the panel constituted by drawings as follows: January 24, seventy-five names from jury-box No. 1; March 14, fifteen names from jury-box No. 3; April 25, thirty names from box No. 1; and May 6, thirty names from box No. 3. Of the 150 jurors drawn but twenty-one remained on June 17; five from the first drawing, two from the second, six from the third, and the remainder from the last. All but one were residents of the county seat, and that one resided near by, and his postoffice address was Lewistown.
It is contended that this condition defeated the intendment of the law that litigants shall not be compelled to try their cases to jurors from one locality.
The supplementing of the regular panel by drawings from box No. 3 at a time when no jury is being selected is, under certain circumstances, permissible, and the jurors so drawn are qualified for the trial of future cases. ( Lee v. Hayden, 63 Mont. 589, 208 P. 596; 35 C.J. 283.)
All of the jurors summoned were regularly drawn and impaneled, and, it is stipulated, all jurors excused were "regularly" excused. The court declared, in denying the challenge, that they were all excused "for sufficient cause," and no showing is made to the contrary.
No trouble was experienced in getting a jury, and it does not appear that a different result would have been reached by a jury differently constituted; but it is asserted that the situation was the same as though the court had arbitrarily excused the jury panel and drawn a new one from box No. 3, which is not permissible. ( Hanley v. Northern P. Ry. Co., 66 Mont. 267, 213 P. 235.) If the situation here presented was, as intimated, brought about by a deliberate plan on the part of the judge to hold only those jurors residing at the county seat, in the interest of economy and convenience, however desirable such an arrangement might be, we would unhesitatingly hold that the plaintiff's rights were violated, but the record does not warrant such an inference. Jurors were excused "for sufficient cause" from time to time throughout a long jury term of more than four months, and it is well known to those having experience in such matters that jurors residing at a distance, and especially farmers, are more insistent on being excused than are those who may remain at home and attend to private business while not actually engaged in the trial of cases, and that, toward the end of a long term, the court will find the panel depleted of such juror unless he exercise his discretion with extreme caution. The most that can be said here is that, perhaps, the trial judge lent too sympathetic an ear to recited woes of his jurors from the agricultural districts. We recommend that, in the future, he "hardeneth his heart" against excuses, earnestly urged, but too often lacking in merit, to the end that such a situation may not again arise.
As noted above, the jurors were regularly drawn and impaneled, and were as much a regular panel as though they came from all parts of the county, and, as we must presume in the absence of a showing to the contrary that official duty has been regularly performed (sec. 10606, subd. 15, Rev. Codes 1921), we must assume that the situation resulted from unavoidable accident, and not from an abuse of discretion.
Litigants are not entitled to have their cases tried before particular jurors (35 C.J. 299) or jurors selected from a panel drawn at a particular time; their rights in this respect being sufficiently protected if a fair and impartial jury was drawn in the manner provided by law ( State v. Vuckovich, 61 Mont. 480, 203 P. 491).
2. Plaintiff's motion for a continuance was based upon the affidavit of Austin Warr, trustee for plaintiff at the time the controversy arose, in which he represents that Skadan is a necessary witness for plaintiff by whom he expects to prove that the lease in suit was entered into by Munger. It is then recited that affiant has made diligent search and inquiry, and was unable to learn of Skadan's whereabouts until June 8, 1929, when he was informed that Skadan might be found at Lusk, Wyoming, whereupon he wired Skadan, but received no reply, but verily believes that, if the case is continued for the term, he could be produced at the next term.
It is apparent that Warr could, and did, testify to all that Skadan could have related had he been present. A continuance need not be granted for the purpose of obtaining evidence which would be merely cumulative. ( State v. Showen, 60 Mont. 474, 199 P. 917.)
Further, as the action was commenced in 1925, tried in 1927, appealed and sent back for a new trial in 1929 ( Lehman Co. v. Skaden, 84 Mont. 283, 274 P. 1067), and no attempt was made to secure the attendance of Skadan, other than the sending of a telegram which remained unanswered, the court may well have determined that affiant had neither shown diligence nor the probability that the witness could be produced at a later date. On the record we cannot say that the court abused its discretion in denying the motion. ( Hunt v. Van, 61 Mont. 395, 202 P. 573.)
3. Warr, having testified that Munger had leased a building and conducted a restaurant business therein for four years prior to the period covered by plaintiff's claim, testified that Munger came to him and told him, in the absence of Skadan, that Skadan was going to run the business for him (Munger) thereafter. This Munger denied; his version was that he told Warr that he had "gone broke," and could no longer run the business, but that his cook, Skadan, would take it over if Warr would take him as a renter, and he (Munger) would lease the fixtures to Skadan, and that, on Warr's agreeing, he leased the fixtures to Skadan. In corroboration of this testimony, the court admitted, over plaintiff's objection, the recorded lease from Munger to Skadan and a chattel mortgage given by Skadan to a third party on goods used in the business, also recorded. Plaintiff asserts that the admission of these exhibits constituted error. They were properly admitted for what they were worth as evidence.
4. In 1924 action was begun against Skadan and plaintiff to abate the premises for alleged violation of the prohibition laws. For the avowed purpose of showing the period during which the place was closed under these proceedings, although it claimed rental during that period, plaintiff offered in evidence the injunction order and order dismissing the proceedings. Defendant objected, and, on the objection being overruled, offered the files in the proceedings as a whole; the files were admitted. Plaintiff contends error was committed. The papers were, however, admissible under section 10515, Revised Codes of 1921. Having opened the door by introducing a part of the record, the plaintiff was in no position to prevent the defendant from introducing the whole record showing that Munger was not a party to those proceedings and to contradict the impression given that he took some part in the proceedings. ( Hulse v. Northern P. Ry. Co., 47 Mont. 59, 130 P. 415.)
Finding no reversible error in the record, the judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, ANGSTMAN and FORD concur.