Vierling v. Chas. G. Stifel Brewing Co.

• Decision Date: 12 February 1884
• Citation: 15 Mo.App. 125
• Parties: FREDERICK VIERLING, Appellant, v. CHAS. G. STIFEL BREWING COMPANY, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 125

FREDERICK VIERLING, Appellant,

v.CHAS. G. STIFEL BREWING COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1884.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

TUTT & BRECK. JONES, for the appellant: The special jury law (sect. 2802, Rev. Stats. 1879, Mo.) as in practice in the city of St. Louis, is unconstitutional.--Bill of Rights sect. 10; 2 Lil. Reg. 154; 2 Tidd's Pr. 788; 3 Bla. Com. 257; Atty.-Gen. v. Goodman, 8 Price, 220; Rex v. Perry, 5 Durn. & East, 453; Fulweiler v. St. Louis, 61 Mo. 479; Fine v. Public Schools, 30 Mo. 166; Rose v. St. Louis, 49 Mo. 509; Thomp. & Mer. on Juries, sects. 45-140; The People v. Tweed, 50 How. Pr. 264; Bird v. The State, 7 How. (Miss.) 163; Dan'l O'Connell's Case, 11 Cl. & Fin. 155; Nashville v. Shephard, 3 Baxt. 373; Hamilton v. Fletcher, 64 Ga. 553. There is no machinery provided by which a “special jury” can be selected and summoned.-- Sects. 2771, 2802, Rev. Stats. 1879, Mo. Jury law specially applicable to St. Louis.--Rev. Stats. 1879, Mo., p. 1523; The State v. Burns, 54 Mo. 274; The State v. Connell, 49 Mo. 282; Lincoln v. Stowell, 73 Ill. 246; Wright v. Stewart, 5 Blackf. 120; Gladden v. The State, 13 Fla. 623. If the sheriff is to select and summon it, he and his deputies must take, in open court, the oath prescribed by sect. 2781, Rev. Stats. 1879, Mo.-- Hicks v. The State, 5 Tex. App. 488; Samchen v. The State, 8 Tex. App. 45.

BROADHEAD & HAEUSSLER, and C. V. SCOTT, for the respondent: In Missouri it was early held that the practice of the circuit courts in summoning jurors closely resembled that of the justices of gaol delivery at common law, and a formal venire was unnecessary.-- Samuels v. The State, 3 Mo. 68; The State v. Jones, 61 Mo. 232. Plaintiff, if he desired to test the validity of the law or the order made by the court thereunder, should have filed his motion to quash or vacate the order.-- The People v. McKay, 18 Johns. 212. The only ground of challenge to the array, at common law, was the partiality or default of the sheriff, coroner, or other officer making the return.--Coke Litt. 156 b; 3 Bla. Com. 359; The People v. McKay, 18 Johns. 217; Chitty Crim. L. 546; Wharton's Crim. L., sect. 2947; The People v. Welch, 49 Cal. 174. And does not reach the competency or qualifications of the panel individually or collectively.--Thomp. & Mer. on Juries, sect. 146; Mitchell v. The State, 43 Tex. 517. Statutory provisions relating to the drawing and summoning juries are generally treated as directory. Irregularities and informalities in such selection and summoning constitute no ground for challenging the array. If the jurors are qualified individually the parties to the suit are not prejudiced.-- The State v. Baldwin, 2 Hun, 379; Rafe v. The State, 30 Ga. 60; Perry v. The State, 9 Wis. 19; Guilworth v. Ins. Co., 29 La. Ann. 30; Commonwealth v. Walsh, 124 Mass.--; The State v. Hascall, 6 N. H. 352; The State v. Gut, 6 Minn. 341; The State v. Pitts, 58 Mo. 556; The State v. Knight, 61 Mo. 373. The sheriff was not bound to take the names in any sequence, but was at liberty to make a selection, and with that selection the court would not interfere unless it was shown that it was made partially or corruptly.--5 Bacon's Abr. 338; Rex v. Wooler, 1 Barn. & Ald. 193. Should it be, however, considered that the sheriff in summoning a special jury in St. Louis acts under the provisions of the statute, then the statutes in that respect are simply directory, and if there be no objection to the jurors, except that they were not selected in the mode pointed out, the judgment will not be disturbed on that account.-- The State v. Knight, 61 Mo. 373; The State v. Pitts, 58 Mo. 556.

THOMPSON, J., delivered the opinion of the court.

This was an action for damages for negligence. There was a trial before a special jury summoned under section 2802 of the Revised Statutes, and the defendant had a ver dict.

The only errors assigned relate to the overruling of the plaintiff's challenge to the array from which the jury was selected. According to the recitals of the record, on April 20, 1883, on motion of defendants by their attorney, without notice to plaintiff, the court made the following order: “It appearing to the court that there yet remains in the hands of the clerk of this court about sixty dollars of the deposit made by defendant under the order for a special jury herein, entered on the 10th day of January, 1883, therefore, on motion of defendant by its attorney, it is ordered by the court that the sheriff of the city of St. Louis do summon a special jury of twenty-four lawful men, merchants and business men of said city, to be and appear in room 2 of this court, on Wednesday, April 25th, 1883, at 10 o'clock a. m. of said day, then and there to serve until discharged.” Upon which order, thereafter the sheriff made the following return: “Executed this order of court in the city of St. Louis, this 25th day of April, 1883, by summoning the following parties to appear as jurors before the circuit court on the above mentioned day.” Here follow the names of twenty-seven persons, and the return is signed in the name of the sheriff by one of his deputies. The record then proceeds to recite: “And thereafter on the same day the case was called for trial, and twenty-four of said special panel being called, plaintiff duly challenged the array for the reasons:--

1. That the law under which the jury had been summoned was unconstitutional.

2. That the said law could not be executed, as it did not prescribe how the special jury should be summoned, and that there was no warrant of law for summoning a jury in the way in which this jury had been summoned.

3. That the selecting and summoning of said jury by the sheriff was illegal; and further, that it was the duty of the court to designate a sufficient number of persons to be summoned, and not leave it to the discretion of the sheriff.

4. That in summoning this said jury, the law, as prescribed, had not been complied with.

“Which said challenge was overruled; to which action of the court plaintiff by his attorney then and there duly excepted at the time.”

Among the grounds on which the plaintiff asked for a new trial were:--

“1. The court erred in overruling legal objections made by the plaintiff to the array of the jury, before said jury was sworn.

2. The jury was improperly and illegally chosen and summoned.”

I. In support of this motion for new trial a long affidavit of Isaac M. Mason, sheriff of the city of St. Louis, is filed, setting forth that neither he nor any of his deputies had taken the oath of impartiality in summoning jurors required by section 2781 of the Revised Statutes; and setting forth in detail the manner in which special jurors, when ordered, are selected and summoned by him, and also the manner in which this particular jury was selected and summoned by him. This affidavit was not made by the sheriff until after the judgment had been rendered and the motion for new trial made, and the record does not disclose that the facts stated therein were brought to the attention of the court by the challenge to the array, or in any other manner, before the jurors were sworn, or that they were not known to the challenging party at the time when he made his challenge to the array. It, therefore, follows, that for the purposes, of what we have to decide, it might as well have been left out of the record; for no rule of practice is better settled than that a party can not make his challenge to an array, or to particular jurors, for the first time in a motion for new trial. Thomp. & Mer. on Jur., sect. 275, subsect. 2; 295, 296. If the affidavit had been presented at the time when the array was challenged, and in support of the challenge, it would have been our duty to consider the legal effect of the facts therein stated. But the rule is well settled that, after verdict, informalities in selecting the jury will not be heard as a ground for new trial, although they did not sooner come to the knowledge of the party complaining, unless it is made to appear that the rights of the party complaining were substantially prejudiced thereby. Ibid., sect. 295, and numerous cases cited. This principle was early declared in this state with reference to challenges to the array. Thus, in Samuels v. The State (3 Mo. 68 [1831]), which was a capital case, it was laid down by the supreme court that “every objection to the sheriff, and we presume to every other officer returning a jury, must be taken before the trial commences, and can not be taken advantage of in arrest of judgment.” This principle was recognized in 1865 in The State v. Marshall (36 Mo. 400), another capital case; and in 1875 in The State v. Jones (61 Mo. 232.) If a challenge to the array can not be made after verdict, it can not be tried after verdict, on facts then for the first time brought to the notice of the court. We have, therefore, to consider whether the grounds of challenge stated in the record present anything which, as matter of law, ought to have required the quashing of the panel.

II. The first of these grounds is that the law under which the jury had been summoned was unconstitutional. The statute referred to is in the following language:--

“Either party to a cause pending in the circuit court, or court of common pleas, or criminal court, of any county and triable by a jury, shall be entitled, as of course, to an order for special venire on motion made therefor, three days before that on which the case is set for trial; but the cost of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the case was one for the trial of which a special jury should have been ordered, in which case the costs of the special jury shall be taxed as other costs against the losing party. This section...