My dissent in this case is because, in my judgment, the facts do not warrant the application of the rule that, where there is an irregularity in the impaneling of a jury and a party by his attorney makes no objection thereto, after verdict such party is held to have waived the irregularity, unless it be shown that the attorney had no knowledge of such irregularity, and that the circumstances were not such that, by the exercise of reasonable diligence, he should have discovered the irregularity.
In this case, neither the trial judge nor any of the attorneys knew that there was not a sufficient number of regularly summoned jurors to constitute a jury, and the bailiff, who anticipated such condition, spoke to three persons who were in and about the courthouse, and told them if they would remain they would probably be called upon a jury.
There were nine of such regularly summoned jurors, and when the bailiff called the jury she classed said three persons with the nine jurors and called them all, and in such a manner that neither the court nor the attorneys in the case knew or had any suspicion that three talesmen from in and about the courthouse had been called to the jury. The case was completed in one day, and not until after verdict had been returned did either the attorneys or the court discover that any *Page 70 talesmen had been called for service upon the jury.
Section 11419-48, General Code, provides in part that "no person known to be in or about the courthouse shall be selected" as a talesman for service as a juror "without the consent of both parties." In my judgment, that section was violated in the selection of the jury in question, without the knowledge of the attorneys, and under circumstances which did not, in the exercise of due diligence, require them to make any inquiry in reference to the violation of the statute. The section requires their consent, which was not obtained, and the principle of waiver was not applicable.