The opinion of the court was delivered by
Brewer, J..:This is a proceeding in error brought to review the action of the district court of Shawnee county, sustaining a motion for a new trial. The case made gives a statement of the pleadings, omits the testimony and instructions, and recites the verdict. It then says: “ The defendant then moved the court to grant it a new trial upon various grounds, among others the following: “1st, Irregularity in the proceedings of the jury; 2d, Misconduct of the Jury.”
On the hearing of the motion the court received the affidavit of a juror to show the alleged misconduct, over the objection of plaintiff. The motion for a new trial was sustained. Whether the court erred in receiving the affidavit of the juror, is a question which we do not feel called upon to decide on the record as presented; because, if error, it does not appear that it has resulted to the prejudice of the plaintiff. Other grounds than the misconduct of the jury were presented in the motion for a new trial. There may have been abundant reason in those other grounds for setting aside the verdict, and for aught that appears in the record the court acted on those grounds. Even if we should examine the question presented by counsel and find error, we should still be unable to say that such erroneous ruling was the ground of disturbing the verdict. This is akin to the case of a record presenting only part of the testimony, or a portion of the charge. McCreary v. Cockrill, 3 Kas., 37. Upon the case before us we cannot disturb the order of the district court.
All the Justices concurring.