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District Court of Appeal, Second District, Division 2, California.

Norman LIEBMAN, Plaintiff and Appellant, v. Cyril Warren CURTIS, Defendant and Respondent.

Civ. 21137.

Decided: January 19, 1956

Irving H. Green, Beverly Hills, for appellant. Early, Maslach, Foran & Tyler, Los Angeles, for respondent.

Respondent's petition for rehearing relies upon the case of Buckley v. Chadwick, 45 Cal.2d 183, 288 P.2d 12, but that decision does not overrule or impair the effect of the cases discussed in the opinion herein. It was held in the Buckley case that an erroneous overruling of a peremptory challenge was not prejudicial under the facts of that case,—facts which do not present an analogy to the situation at bar. It was not claimed in that case that the juror was subject to challenge for cause; the peremptory challenge was made with advance knowledge that it would not be allowed; counsel actually withdrew the challenge before the jury was completed and withdrew his exception to the court's ruling (288 P.2d 23); the juror remained on the case; a unanimous verdict was rendered (the opinion was modified on November 4, 1955 to show that fact), and the court pointed out 45 Cal.2d at page 203, 288 P.2d at page 24, that, ‘the appellant ‘has made no affirmative showing, and does not offer to show, that any of the * * * jurors who were actually sworn and served in the trial of the cause were biased, prejudiced, or in any way unfit to serve as trial jurors; nor does it appear that by reason of the manner in which the jury was selected the * * * [appellant] did not have a fair and impartial trial.’'

Petition for rehearing is denied.


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