RESPONSE TO PETITION EOR REHEARING.
Opinion by
Beatty, C: J., Lewis, J.,concurring.
The first proposition of counsel upon petition for rehearing is that this Court erred in holding that nothing contained in the assignment of errors could be treated as a statement of fact, admitted to be correct by the other side. Upon a careful reexamination of the case, we still think we were right. On page ten of the record we first find the title of the Court in which the action was pending ; then the title of the case, and then follows this language :
“ Plaintiff’s statement and bill of exceptions to be used in said Court on a motion for a new trial of said cause, and in the Supreme Court should said motion be denied.
“ Plaintiff moved for a new trial on the following grounds, to wit:
“ 1. Insufficiency of the evidence to justify the verdict; and to sustain this, he refers to the statement of the evidence hereto annexed, marked Exhibit A.
“ 2. Errors in law occurring at the trial and excepted to at the time by the plaintiff, to wit:
a I. The Court erred in refusing plaintiff’s challenge to the juror John Grillig for cause, and compelling plaintiff to exclude said juror by peremptory challenge, and thus disabling him from excluding other jurors to whom he objected. And to sustain this he refers to Exhibit A, pp. 2£, 2£, 2f, and 3.”
A number of other alleged errors of law are stated, and finally, on page eleven of the record, this paper seems to end in this way:
“ Eor the purposes of this motion plaintiff will refer to the docu-' *167mentary evidence on file, and not included in Exhibit A, as well as the minutes of the Court.
“ J. S. Pitzer, and
“ Reardon & Hereford,
“ Plaintiff’s Attorneys.”
On page twelve we have again the entitling of the Court, the cause, the names of attorneys, etc., followed by this language:
“ In the impanneling of the jury, M. M. Mitchell sworn to answer questions.” Then follow the questions to and answers of Mitchell. Then the questions and answers of other jurors, the rulings of the Court, the testimony of the witnesses in the cause, 'etc. Finally the statement winds up as follows: •
“ Case closed and submitted to the jury, who retired, and returned into Court, and delivered a verdict in favor of defendant. The jury being then polled at the request of plaintiff’s attorneys, eleven of the jurors concurred in the verdict; one only disagreed to it.
“ The foregoing statement is agreed to as correct.
“ November 27th, 1865.
“ Pitzer & Ketser, and
“ Reardon & Hereford,
“ Attorneys for Plaintiff.
“ Crittenden & Sunderland,
“ Attorneys for Defendant.”
The question is: When counsel for defendant agreed to the foregoing statement, what did they admit ? With regard to the testimony, the answers of jurors to questions touching their competency, and the rulings of the Court, it was no doubt intended to admit that these were correctly stated in the foregoing statement. It was also undoubtedly intended to admit that counsel for plaintiff had filed a paper such as appeai-s on pages ten and eleven of the transcript. Rut surely it cannot be contended that defendant’s counsel intended to admit, or did admit, that all the propositions contained in that assignment were true. The defeated party in any cause may file an assignment of error, containing anything he may choose to insert therein. He may assign a hundred errors having no foundation in fact and no connection, with the case. The opposing counsel, in *168settling the statement, could not deny the filing of such an assignment of errors. As we understand the admission of defendant’s counsel, it is simply that plaintiff had filed an assignment of errors such as is set forth on pages ten and eleven of this transcript.
. That plaintiff’s counsel did not consider this assignment of errors as stating the facts of the case, is shown on the face of that assignment. The first error of law assigned reads thus :
“1. The Court erred in refusing plaintiff’s challenge to the juror John Gillig for cause, and compelling plaintiff to exclude said juror by peremptory challenge, thereby forcing the plaintiff to exhaust his peremptory challenges, and thus disabling him from excluding other jurors to whom he objected. And to sustain this, he refers to Exhibit A, pages 24, 24, 24, and 3.” If the assignment of errors was also to stand as a statement of the facts to support the error, why refer to certain pages in Exhibit A to sustain the assignment? Undoubtedly the counsel understood the assignment as the Court does: merely as a statement of the point of argument to be used, with reference to another paper, for the facts to sustain the point. If not, why refer to Exhibit A to sustain the exception ?
In the transcript we find nothing which is called Exhibit A ; but' we suppose reference is made to the statement beginning on page twelve. That statement simply shows that John Gillig was questioned touching his qualifications as a juror; that, after the examination, plaintiff interposed a challenge for cause, which challenge was overruled by the Court. Here the statement closes, without showing what after-action was taken. After a challenge for cause is overruled, one of two things usually happens: the challenging party interposes a peremptory challenge, or else the juror is sworn, and sits in the case. A statement, or motion for new trial, or an appeal, should certainly show which of these events actually happens.
Causes are reversed, not because Judges at nisi prius entertain wrong opinions upon some point of law arising in the progress of the trial, but because they give some practical effect to such erroneous opinions. A bill of exceptions or statement should not stop with merely showing that the Judge expressed an opinion which was erroneous: it should show that some wrong step was *169taken in the progress of the trial. If a Judge expresses an erroneous opinion about some material point in his charge to the jury, that opinion is error, because the jury are supposed to be influenced by the erroneous views of the Court. But if a Court rules that a certain kind of testimony is admissible, when in fact it is not admissible, this ruling, unless it be taken advantage of by the opposite side, does no harm and is not such error as will reverse a judgment. Hence, in such case, a bill of exceptions should not merely state what was the ruling of the Court, but should also state distinctly that the illegal testimony was introduced under the ruling. So, if a juror is challenged for cause and the challenge is not allowed, the statement or bill of exceptions should show distinctly what disposition was made of the juror. If that is not shown, we do not see how this Court is to determine that error was committed. The mere opinion of the Judge does no hurt to either side. It is his action founded on that opinion which is erroneous. If this Court is not apprized of what that action was, how can it review the case ? In this case, the statement only shows what was the opinion of the Court: it does not show what resulted from that opinion — what subsequent action was taken.
If the opinion could only have produced one result, then indeed the statement need only have shown what the Judge decided, because this Court would have understood what necessarily followed. But if an opinion of a certain character may have been followed by several courses of action, some of which would have resulted in injury to the party excepting and others been perfectly harmless, we cannot say whether any injury was done to the complaining party. The affirmative is on the appellant; and failing to show error, the judgment of the Court below must be affirmed.
In our former opinion, we say it is admitted by counsel that Gillig did not sit in the case ; and petitioner claims that this admission should not bind appellant, because it was made simply on the facts presented by the statement, as understood.by appellant’s counsel; that if the assignment of error is not to be considered as containing facts on which the Court can act, neither should the counsel for appellant be bound by the facts therein stated which militate against his client.
*170This position is perfectly correct. But leaving this admission out of the case, appellant is in no better condition.
In the first place, there is no assignment of error on the ground that Gillig did serve as a juror; and if the appellant were allowed to file such an assignment in this Court for the first time, then the record would show two assignments directly contradictory, the one of the other. First, that appellant was compelled to exhaust one of his peremptory challenges to get Gillig off the jury. Second, that: he (Gillig) served on the jury. No possible state of facts coúld support both these points. Yet both points might have been made in the assignment of errors in the Court below, and no Judge, in settling the statement, could with propriety have stricken either out. The assignment of errors is in the discretion of the appellant. This Court must judge whether the facts stated in the record sustain the assignments. In this case, there being no assignment of error on the ground that Gillig served as a juror, but only that appellant was compelled to challenge him peremptorily, we did assume that the record showed a peremptory challenge. We did this upon the ground that if he had served as a juror, it would have been a much stronger point for appellant. When, therefore, the appellant only complained of being compelled to challenge, we assumed that the juror had not served in the case. If he had served, it is not likely the appellant would have failed to complain of it.
Only two results could reasonably have followed the ruling of the Court on the challenge for cause: the one, that Gillig served as a juror; the other, that he was peremptorily challenged by appellant. If he served, it was clearly error. If the compelling appellant to challenge peremptorily was error, then certainly the case should be reversed, because error injurious to appellant was the necessary result of the ruling, and it would be unnecessary to determine whether this injury resulted from the juror serving or from the challenge.
But as, in our opinion, one of these results would have been error and the other not, it becomes necessary for us to determine, if we can, which result did follow the ruling; or if we cannot determine that, then to settle what the rule should be in a case thus *171left uncertain. As we before said, the appellant must make out his case, and if he only established the fact that something was done which might or might not have produced a result injurious to himself, he has failed.
So, too, all reasonable presumptions are to be indulged in favor of the regularity of proceedings in the Court below. This last rule has not much force in this case, because it is conceded the Judge below did err in his rulings; but still, as the chances were even as to whether that error of judgment was followed by action injurious to appellant, or that which was perfectly harmless, even in such case the rule is perhaps not altogether inapplicable.
As there was an assignment of error on the ground that appellant was compelled to exhaust his peremptory challenges on Gillig, and none on the ground that Gillig served as a juror, certainly the presumption is that he was challenged. Whether this exhausted his peremptory challenges, or whether he still had one, two or three at his disposal, did not appear of record. The question then arose, whether this was sufficient to reverse the case. This question was one of very great doubt with the writer of this opinion. Upon an examination of authorities, we find a most decided preponderance in favor of the views we took in the case. The Virginia cases seem to hold that the simple fact of compelling a party to. challenge a juror peremptorily when he should have been set aside for cause, would be good ground for granting a new trial.
These decisions were in criminal cases. Possibly, the rule might be different in that State in civil cases. There is also a dictum in 8 Gilman’s Reports, 368, to the same effect. This was also in a criminal case. On the other side, we find the several cases referred to in the original opinion. As the record fails to affirmatively show that appellant did exhaust his challenges, we think the original opinion must stand as the law of the case. In this case, probably the appellant, on a more full and complete statement, would have been entitled to a new trial.
We always regret being compelled to decide a case on a mere technicality not affecting the merits, but we cannot go outside of the record.
A rehearing is' denied.