
    Hamilton et al. v. Pattison et al.
    [No. 12,886.
    Filed June 10, 1927.]
    
      Appeal. — Ruling on motion for new trial because of misconduct of juror not reviewed where counter-affidavits were filed. — The decision of the trial court on a motion for a new trial beeeause of misconduct of a juror will not he reviewed on appeal where counter-affidavits were filed disputing the charge of misconduct.
    From Marion Probate Court (1795); MahlonE. Bash, Judge.
    Proceeding by Joseph B. Hamilton and another against Joseph H. Pattison and another to contest the will of Margaret E. Hamilton, in which the defendant Kleinsmith filed a cross-complaint. From a judgment upholding the will, the plaintiffs and cross-complainant appeal. A ffirmed. By the court in banc.
    
      George W. Meiks and Clarke & Clarke, for appellants.
    
      William W. Hammond, C. Severin Buschmann, Mark H. Miller, Smith, Remster, Hombrook & Smith, Frank B. Ross, Emsley W. Johnson and Alan W. Boyd, for appellees.
   Nichols, J. —

This is a suit to contest the last will and testament of Margaret E. Hamilton, deceased. There was a complaint by appellants Hamilton and Row and a cross-complaint by appellant Kleinsmith, a defendant in the action below, both contesting the will of said decedent, and both answering in general denial. The issues were submitted to a jury for trial and a verdict rendered upholding the will, on which judgment was rendered. The error presented is the court’s action in overruling appellants’ motion for a new trial which presents only the misconduct of a juror. The alleged misconduct complained of consisted of statements made by the juror on his voir dire to the effect that he was not acquainted with any of the parties to the suit, when, as claimed by appellants, he was well acquainted with, one of the appellees and with his family.

There were affidavits and counter-affidavits. Under such circumstances, the decision of the trial court will not be reviewed by this court. Roose v. Roose (1896), 145 Ind. 162, 44 N. E. 1; Rosenberg v. State (1922), 192 Ind. 485, 490, 134 N. E. 856, 137 N. E. 53.

Judgment affirmed.  