Saltzman

Action for damages for personal injuries received by plaintiff while in the employment of defendant.

Verdict was rendered for the defendant by a divided jury. The motion for a new trial was based upon the point of alleged misconduct of the jury. Such alleged misconduct was made to appear by the affidavits of the dissenting jurors, and upon one charge of misconduct by the affidavit of the deputy sheriff who had charge of the jury.

The notice of motion for a new trial stated that the motion would be made on a statement of the case and upon affidavits. The code provides that when the motion is made upon the ground of misconduct it shall be made on affidavits. (Code Civ. Proc., sec. 658.) The statement was, therefore, unauthorized. On the hearing the court refused to consider certain affidavits and denied the motion. Plaintiff then prepared a bill of exceptions, which was settled by the court, which included all the affidavits and the ruling. This was proper, and no injury was done by the statement. The record here seems sufficient if that be excluded. The deposition of the deputy sheriff, taken in open court, must be regarded as an affidavit. If he refused to make an affidavit, no…