dissenting.
In the former opinion in this case (97 Neb. 298) three points were decided: (1) That there was sufficient• evidence to support the verdict; (2) that it was not affirmatively shown that certain talesmen were improperly drawn; (3) that a party to a suit cannot wait until after the jury has returned an adverse verdict before raising objections to the qualifications of jurors.
The majority opinion does not consider nor controvert the first point, and, hence, we have the anomalous situation that, although a proper verdict has been rendered, it is set aside on account of a mere irregularity in filling the panel. As to the second point, upon further consideration, I am inclined to think that the law laid down in the third paragraph of the syllabus in the former opinion did not construe the statute properly, and that the present opinion makes the proper interpretation. This should not affect the judgment, because, as pointed out, the rule is that one will not be permitted to wait until after an adverse verdict before he questions the qualifications of a juror. If he does this, he Avaives his right to object. The majority opinion holding that this can be. done overrules a number of former decisions of this court without mentioning them, and is contrary to the general rule in other states.
In 1 Thompson, Trials (2d ed.) sec. 116, Mr. Thompson says that the mass of American authorities is in conformity with this rule: “It has been repeatedly held that a cause of challenge not discovered until after verdict, Avhether the case be civil or criminal,- as that some of the jurors Avere aliens, or not of the jury list as selected by the county authorities, * * * is not, per se, a ground of new trial, though it may be such in the discretion of the court. In the exercise of such a discretion, an essential inquiry will be whether the objecting party exercised reasonable diligence in ascertaining the qualifications, of the obnoxious juror. Was he questioned on the voir dire as to the cause of challenge now alleged? If not, there has been *62a lack of diligence on the part of the complaining party, which amounts to a waiver of the cause of challenge. * *. * in England and in many American jurisdictions a paramount inquiry upon such an objection is whether it has resulted in an unjust verdict; if not, the objecting party has sustained no injury, and a new trial will not be granted in order that public and private time may be consumed, and the dangers of other irregularities incurred, when the same result must, on a just view of the evidence, be reached. Unless there is plain evidence of injustice done to the party complaining, the verdict should be allowed to stand.”
This has heretofore been the settled rule in this state, even in criminal cases. In Wilcox v. Saunders, 4 Neb. 569, it was held that the objection that a juror was disqualified by reason of not being a resident of the county for the statutory period was waived because not made before the trial, and that, if the disqualification was not known at that time, the record should show that an effort to ascertain .the facts was made upon the voir dire examination; otherwise a new trial would not be granted.
In Brown v. State, 9 Neb. 157 (a criminal case), it was held that, as the law then stood, a district judge, in calling a special term of court, had no authority to order the sheriff to summon grand and petit juries, but it was also held that objection to the mode of selecting the jury must be made by challenge or plea in abatement, and that after the accused had pleaded to the indictment it was too- late to object that the jury were not legally summoned.
In Davis v. State, 31 Neb. 247, 254, the county commissioners selected only 59 names, instead.of 60, as jurors. The opinion says: “The statute requires that the commissioners shall select 60 names. It has been frequently declared by this court that the provisions of the statute relating to the selection of grand and petit jurors are mandatory and must be strictly followed. Burley v. State, 1 Neb. 385; Preuit v. People, 5 Neb, 377; Brown v. State, 9 Neb. 157; Clark v. Saline County, 9 Neb. 516; Barton *63v. State, 12 Neb. 260. No objection was made in the court below that the list from which the jurors were drawn did not contain the requisite number of names. The sole objection there made related to the inequality of the selection, and that was raised for the first time in the motion in arrest of judgment. This was too late. It should have been taken before the trial, by motion to quash the panel. The defendant waived all errors in the manner of selecting the jury.”
Turley v. State, 74 Neb. 471, was a prosecution for murder. One who was disqualified by reason of having been convicted of a felony sat as a juror. In the opinion by Sedgwick, J., it is said: “Great latitude is allowed the defendant upon the voir dire examination to enable him to ascertain whether there is any ground for objecting to the juror. He cannot waive an objection of this nature, and, after taking his chances of an acquittal before the jury selected, insist upon an objection which he should have raised upon the impaneling of the jury, and, if he makes no effort to ascertain whether a juror offered is qualified to sit, he must be held to have waived the objection. Any other rule would introduce uncertainty into a jury trial which would be intolerable.” This is- followed in Reed v. State, 75 Neb. 509.
In the case at bar no objection was made at any stage of the trial. The list of names on the panel of regular jurors was of record and within the reach of plaintiff and his counsel before the trial. A reference to this list, which under the statute could not at any time include more than 24 jurors for each judge sitting with a jury, Avould at once have disclosed that the jurors complained of were not regularly upon the panel. Having failed to interpose any objection or complaint until after he had tested the temper of the jury and received an adverse verdict, che plaintiff waived the irregularity, and is bound by the verdict.
Baenes and Fawcett, JJ., concur in this dissent.